Tag: Cost Shifting

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United States v. Visa USA, Inc., 1999 WL 476437 (S.D.N.Y. Jul. 7, 1999)
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Lipco Elec. Corp. v. ASG Consulting Corp., 2004 WL 1949062 (N.Y. Sup. Ct. Aug. 18, 2004) (Unpublished)
3
In the Matter of Certain Network Interface Cards, 2001 WL 1217233 (U.S.I.T.C. Oct. 12, 2001)
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Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568 (N.D. Ill. 2004)
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Vision Point of Sale, Inc. v. Haas, 2004 WL 5326424 (Ill. Cir. Ct. Sept. 27, 2004)
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Hagemeyer N. Am., Inc. v. Gateway Data Sci. Corp., 222 F.R.D. 594 (E.D. Wis. 2004)
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Multitechnology Servs., L.P. v. Verizon Southwest, 2004 WL 1553480 (N.D. Tex. July 12, 2004)
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Dean v. Priceline.com, Inc., 2002 WL 34155897 (D. Conn. Sept. 10, 2002)
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Williams v. DuPont, 119 F.R.D. 648 (W.D. Ky. 1987)
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McCabe v. Ernst & Young, LLP, 221 F.R.D. 423 (D.N.J. 2004)

United States v. Visa USA, Inc., 1999 WL 476437 (S.D.N.Y. Jul. 7, 1999)

Key Insight: Parties agreed to narrow the scope of archived email search, both in terms of the number of employees whose email was to be produced and the number of days per month for which that email was to be produced; defendants to bear cost of production ($130,000) initially, but court reserved decision about who ultimately would bear cost; court denied plaintiff’s request that defendant make its production available on CD-ROM

Nature of Case: Antitrust

Electronic Data Involved: Archived email

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 Aug. 18, 2004) (Unpublished)

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

In the Matter of Certain Network Interface Cards, 2001 WL 1217233 (U.S.I.T.C. Oct. 12, 2001)

Key Insight: Where there were gaps in plaintiff’s production of email, administrative law judge granted motion to compel production of email from plaintiff’s backup tapes but ordered parties to share the costs of such production

Nature of Case: Case before the U.S. International Trade Commission

Electronic Data Involved: Email

Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568 (N.D. Ill. 2004)

Key Insight: Court created its own eight-factor test by adding one more factor to the Zubulake seven-factor test, and determined that cost-shifting was appropriate (responding party 25% and requesting party 75%)

Nature of Case: Sexual harassment

Electronic Data Involved: Email stored on backup tapes

Hagemeyer N. Am., Inc. v. Gateway Data Sci. Corp., 222 F.R.D. 594 (E.D. Wis. 2004)

Key Insight: Adopting Zubulake and McPeek approaches, court ordered defendant to restore a sampling of five backup tapes selected by the plaintiff; parties would thereafter be required to make additional submissions addressing whether the burden or expense of satisfying the entire request was proportionate to the likely benefit

Electronic Data Involved: Email stored on backup tapes

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

Dean v. Priceline.com, Inc., 2002 WL 34155897 (D. Conn. Sept. 10, 2002)

Key Insight: Court ordered defendant to produce to plaintiff information in the possession of a third party storage facility, with each side paying one-half of the charges billed by the third party for retrieving the information; court further ruled that the prevailing party would be entitled to recover from the losing party its share of the costs associated with retrieval of the information

Nature of Case: FLSA claim

Electronic Data Involved: Electronic documents

Williams v. DuPont, 119 F.R.D. 648 (W.D. Ky. 1987)

Key Insight: Employer entitled to discover, at its own expense, copies of database on computer disk, code books and user manual created by EEOC’s expert from information produced by employer to allow for effective cross-examination of EEOC’s expert; in addition, employer to pay “fair portion of the fees and expenses incurred” in the past by EEOC for the expert’s work in encoding the requested data and formulating the database

Nature of Case: Consolidated Title VII action brought by individual and EEOC

Electronic Data Involved: Database created by EEOC’s expert from information produced by employer

McCabe v. Ernst & Young, LLP, 221 F.R.D. 423 (D.N.J. 2004)

Key Insight: Magistrate recommended that non-parties’ motion for attorneys’ fees and other costs incurred in appearing for depositions and responding to subpoenas be denied, since non-parties failed to object to subpoenas or condition compliance on reimbursement, and an award of $58,000, without notice to plaintiffs, would be tantamount to severe prejudice

Electronic Data Involved: Email and hard copy documents

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