Tag: Cost Shifting

1
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)
3
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)
5
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978)
6
Xpedior Creditor Trust v. Credit Suisse First Boston (USA), Inc., 2003 WL 22283835 (S.D.N.Y. Oct. 2, 2003)
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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)

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

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

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