Tag: Cost Shifting

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

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

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

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