Tag: Cost Shifting

1
OpenTV v. Liberate Tech., 219 F.R.D. 474 (N.D. Cal. 2003)
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In re Worldcom, Inc. Sec. Litig., 2004 WL 768573 (S.D.N.Y. Apr. 12, 2004)
3
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978)
4
Xpedior Creditor Trust v. Credit Suisse First Boston (USA), Inc., 2003 WL 22283835 (S.D.N.Y. Oct. 2, 2003)
5
Portis v. City of Chicago, 2004 WL 1535854 (N.D. Ill. July 7, 2004)
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Zonaras v. Gen. Motors Corp., 1996 WL 1671236 (S.D. Ohio Oct. 17, 1996)
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Allstate Ins. Co. v. Hodges, 855 So.2d 636 (Fla. Dist. Ct. App. 2003)
8
Portis v. City of Chicago, 2004 WL 2812084 (N.D. Ill. Dec. 7, 2004)
9
Pamlab, L.L.C. v. Rite Aid Corp., 2004 WL 2988482 (E.D. La. Dec. 9, 2004)
10
BASF Fina Petrochemicals Ltd. P’ship v. H.B. Zachry Co., 2004 WL 2612835 (Tex. App. Nov. 18, 2004)

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

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

In re Worldcom, Inc. Sec. Litig., 2004 WL 768573 (S.D.N.Y. Apr. 12, 2004)

Key Insight: Court granted underwriter defendants’ motion for extension to complete production of certain electronic discovery but advised that, should they fail to meet this schedule, plaintiffs could request to be relieved of their obligation to share expenses in the production of electronic discovery; further, defendants to conduct additional electronic discovery searches for nine more custodians

Nature of Case: Securities class action

Electronic Data Involved: Electronic discovery

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

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

Xpedior Creditor Trust v. Credit Suisse First Boston (USA), Inc., 2003 WL 22283835 (S.D.N.Y. Oct. 2, 2003)

Key Insight: Motion for protective order requiring plaintiff to share the cost of restoring computer files denied; Zubulake judge applied Zubulake factors and concluded that cost-shifting was not appropriate

Nature of Case: Breach of contract class action

Electronic Data Involved: Computer files housed on decommissioned systems

Portis v. City of Chicago, 2004 WL 1535854 (N.D. Ill. July 7, 2004)

Key Insight: Court granted motion to compel access to database constituting fact work product, where requesting party demonstrated (1) substantial need for the information and (2) undue hardship were it required to compile a similar database from scratch; however, requesting party would have to contribute its fair share toward the expenses incurred in compiling the database

Nature of Case: Class action for civil rights violations

Electronic Data Involved: Database compiled at direction of plaintiffs’ attorneys

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

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

Portis v. City of Chicago, 2004 WL 2812084 (N.D. Ill. Dec. 7, 2004)

Key Insight: Court clarified its July 7, 2004 order and explained how it intended the costs of compiling the database would be calculated: the number of hours plaintiffs’ computer expert and the paralegals spent on the project, multiplied by their respective hourly billing rates, plus other costs, if any; court quashed defendants’ discovery requests seeking information regarding the salaries paid to computer expert and the paralegals

Nature of Case: Class action for civil rights violations

Electronic Data Involved: Database compiled at direction of plaintiffs’ attorneys

Pamlab, L.L.C. v. Rite Aid Corp., 2004 WL 2988482 (E.D. La. Dec. 9, 2004)

Key Insight: Where certain information was not available through defendant’s computer system and cost of recovering information through physical search could exceed damages claimed, court ruled that “prudent course” would be to place cost of physical search on plaintiff and instructed parties to develop a protocol for manual inspection of records at ten (of 3,000) stores; court further ordered defendant to provide available computer records

Nature of Case: Drug company claimed drug store chain improperly substituted one drug for another

Electronic Data Involved: Computer databases

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

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