Cost Shifting – Page 26 – Electronic Discovery Law

Allstate Ins. Co. v. Hodges, 855 So.2d 636 (Fla. Dist. Ct. App. 2003)

Dec 01 2004

Key Insight: Trial court properly ordered insurer to answer victim’s interrogatories despite claimed burden; court remarked: “[I]n the three years following the issuance of Boecher, Allstate still has not implemented a computer program or system for keeping track of the information. In fact, Allstate used two of the very same affidavits it used in Boecher to explain that its computer systems did not have the information requested readily accessible. In this day of the computer age, and in light of the Boecher court’s serious emphasis on the need for the very type of information requested, Allstate may want to reconsider adapting its computer system to provide easier access to the requested information.”

Nature of Case: Personal injury

Electronic Data Involved: Information regarding insurer’s relationship with and payments to medical groups where its experts worked as physicians

BASF Fina Petrochemicals Ltd. P’ship v. H.B. Zachry Co., 2004 WL 2612835 (Tex. App. Nov. 18, 2004)

Dec 01 2004

Key Insight: Court awarded non-party its costs of production, but ruled that non-party was not entitled, under either Tex. R. Civ. P. 205.3 or 176.7, to recover attorneys’ fees incurred in responding to subpoena, noting that non-party obtained legal advice to protect its own interests, not to facilitate compliance with subpoena

Nature of Case: Construction litigation

Electronic Data Involved: Electronic data

Computer Assoc. Int’l v. Quest Software, Inc., 56 Fed. R. Serv. 3d 401, 2003 WL 21277129 (N.D. Ill. June 3, 2003)

Dec 01 2004

Key Insight: Applying the Rowe balancing test, court denied producing party’s motion to require requesting party to pay costs associated with computerized privilege review estimated to cost $28,000-40,000

Nature of Case: Copyright infringement, misappropriation of trade secrets

Electronic Data Involved: 8 hard drives

Georgia Emission Testing Co. v. Reheis, 602 S.E.2d 153 (Ga. Ct. App. 2004)

Dec 01 2004

Key Insight: Trial court abused its discretion in ordering parties to share costs of requested discovery equally, and should have ordered the requesting party to bear full cost where requested information should have been available in the requesting party?s own records, and the request involved the creation of a report that otherwise did not exist, and had to be specially created by a nonparty contractor at significant cost

Nature of Case: Suit to recover fees improperly assessed pursuant to Motor Vehicle Emission Inspection and Maintenance Act

Electronic Data Involved: Special report extracted from massive database of information

Hines v. Widnall, 183 F.R.D. 596 (N.D. Fla. 1998)

Dec 01 2004

Key Insight: Granting plaintiff’s’ motion to compel production of computerized images of employment records which were created to facilitate review of the documents by geographically-dispersed defense counsel, court held that images did not constitute attorney work product since images did not contain mental impressions or legal theories and would not give plaintiffs insight into defense strategy or opinions; plaintiffs to pay only nominal copying costs and not portion of $250,000 imaging cost incurred by defendant

Nature of Case: Race discrimination

Electronic Data Involved: Computerized images of employment records

Kormendi v. Computer Assoc. Int’l, Inc., 2002 WL 31385832 (S.D.N.Y. Oct. 21, 2002)

Dec 01 2004

Key Insight: Defendant ordered to produce all email messages mentioning plaintiff for certain time period; plaintiff to pay the cost of the email search

Nature of Case: Employment discrimination

Electronic Data Involved: Email

Lipco Elec. Corp. v. ASG Consulting Corp., 2004 WL 1949062 (N.Y. Sup. Ct. Aug. 18, 2004) (Unpublished)

Dec 01 2004

Key Insight: Noting differences between federal law and New York law regarding cost-shifting in discovery, court stated it did not have sufficient information about the costs associated with the requested discovery, but concluded that until plaintiffs indicated a willingness to pay for the requested electronic discovery (whatever its cost), court would not order its production

Nature of Case: Claims based on breach of contract and for an accounting

Electronic Data Involved: Computer data

Multitechnology Servs., L.P. v. Verizon Southwest, 2004 WL 1553480 (N.D. Tex. July 12, 2004)

Dec 01 2004

Key Insight: Court ordered cost-shifting (50/50) where plaintiff sought information about Verizon’s past and present customers even though material was not “inaccessible” under Zubulake analysis, since data was available in Verizon’s computer databases or archives

Nature of Case: Breach of contract and related claims

Electronic Data Involved: Computerized customer data

OpenTV v. Liberate Tech., 219 F.R.D. 474 (N.D. Cal. 2003)

Dec 01 2004

Key Insight: Applying Zubulake balancing test, court ordered parties to share equally the cost of extracting source code from defendant’s database; however, defendant solely to bear cost of copying source code for production once it is extracted

Nature of Case: Infringement action

Electronic Data Involved: Source code

Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978)

Dec 01 2004

Key Insight: Requiring defendant to bear expense of identifying class members was abuse of discretion where cost of effort (over $16,000), which included manually sorting records, keypunching and creating software programs, would be same for plaintiff and no special circumstances existed

Nature of Case: Securities fraud class action

Electronic Data Involved: Computer tapes

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