Key Insight: proportionality
Nature of Case: class action
Electronic Data Involved: backup tapes
Keywords: undue burden, statistical sampling, restoration, reasonably accessible, cooperation, interrogatory, relevance
Key Insight: whether billing temporary contract attorneys at the firm’s standard rates is excessive to award attorney fees
Nature of Case: Securities action
Electronic Data Involved: n/a
Keywords: attorney fees, lodestar, temporary associates
Key Insight: Where Defendant resisted searching certain emails arguing undue burden and that it was unlikely that responsive emails would be found but where no evidence of burden was submitted, where not even a cursory search of the emails was undertaken and where there were examples of the sorts of email sought produced from other employees, the court ordered Defendant to conduct the requested search; similarly, where Defendant offered no evidence of the alleged burden to review and produce the at-issue call recordings, where Plaintiff offered to bear the full cost of transcribing the messages, and where the court determined that the likelihood that the calls would be privileged was low, the court ordered Defendant to produce the raw audiofiles of its customer service calls and voicemail; notably, at the outset of its analysis the court noted that at least 10 attorneys had appeared for each party and that it was ?apparent that the issues at stake are significant,? including posing an ?existential risk? to Defendant and therefore concluded that ?any proportionality argument has a high bar to clear to be successful?
Nature of Case: Trademark infringement
Electronic Data Involved: Customer service emails, call recordings
Key Insight: Third party objected to Subpoena to produce documents alleging undue burden and significant expense and refused to comply without a cost-shifting order. The Court consequently granted the requesting party?s motion to compel and the third party was ordered to produce all responsive documents by the ?most reasonable and practical method it can procure.? Following production, the third party then sought $30,603.55 in expenses. The Court?s two-prong analysis examined the expenses as to whether they were both reasonable and significant. The Court did not award attorneys? fees because the privilege and confidentiality review was a benefit only to the third party. Partial vendor costs were awarded, namely the amount it would have been had the third party used the vendor suggested by the requesting party and some additional miscellaneous costs were awarded. The Court found a total of $4,072 were expenses that resulted from compliance with the Subpoena and did qualify as ?significant expenses.?
Nature of Case: Antitrust and tort
Electronic Data Involved: Gmail
Key Insight: Court denied Defendant?s motion for protective order shifting the costs of producing inaccessible data as part of agreed upon sample set where Defendant failed to adequately establish the justification for cost-shifting by submitting broadly stated affidavit that provided no explanation re: source of affiant?s knowledge of his assertions or any explanation of what the term ?inaccessible? was meant to apply to (e.g., digitized records v. hard copy) and where affiant offered no justification for estimates re: required man hour or hourly rates; court indicated that even if Defendant had established its burden, application of the Zubulake factors re: cost-shifting favored Plaintiff
Nature of Case: FCDPA
Key Insight: Court declined to find ESI ?not reasonably accessible? because of the alleged cost of production where the case at issue was worth $4.5 million and thus the alleged costs did not appear ?sufficiently disproportionate,? where the defendant did not allege a lack of resources, and where defendant had a ?significant interest? in performing the discovery work in a manner that controlled costs but made two exceptions as to documents that would need to be culled and separately recoded and restored before they could be searched and as to documents that needed to be converted to a searchable format to determine tier potential relevance; court ordered parties to confer re: production protocol and cost shifting
Electronic Data Involved: ESI
Key Insight: Where the magistrate judge recommended that Defendant?s request for forensic inspection be granted, to be undertaken by a neutral third party, in light of the fact that the information sought ?seem[ed] germane? and because despite ?hesitancy to allow on site inspections ? the level of distrust among the parties ? plead[ed] for such intervention,? the District Court overruled Defendant?s objections, noting that through their distrust and lack of cooperation ?[t]he parties and counsel themselves have created an atmosphere that warrants extraordinary circumstances and establishes good cause for an on-site inspection of Champion?s electronically stored information? and set forth a process by which the inspection would take place, including that the costs would be shifted to the requesting party ?given the nature of the accessibility of the [ESI] sought? (i.e., the information sought included backup and deleted material)
Electronic Data Involved: Forensic inspection of ESI, including backup and deleted material
Key Insight: The Court granted Defendant?s Motion for a Protective Order and held that under limited circumstances, a party may seek to share reasonable costs related to reviewing documents prior to their production. The Court considered vendor fees to be a valid target for cost-sharing under the facts of this case: discovery spanned more than a decade, the costs currently under review were a small fraction of the costs incurred by Defendant in discovery and there were no concerns that cost shifting would deter Relators or others. Further, Defendant showed that ?almost the entirety of its requested costs were incurred in attempting to respond to Relators? discovery requests, and not incurred as a result of a self-interested privilege review.?
Electronic Data Involved: Electronic mortgage loan files
Key Insight: Addressing question of spoliation related to surveillance video of prison assaults, court concluded that ?traditional? spoliation analysis (as opposed to analysis pursuant to newly amended FRCP 37(e))
Nature of Case: Claims arising from assault in prison
Electronic Data Involved: Surveillance video
Key Insight: Circuit Court affirmed District Court?s order shifting a third party?s attorney?s fees ?that [were] necessary to a discovery proceeding under Rule 45,? but declined to shift attorney?s fees incurred in furtherance of the motion to shift expenses where such fees were not ?not necessary to [the third party?s] compliance with the discovery order as they were incurred after discovery was completed and as a result of [the third party?s] effort to recover fees, rather than in an effort to produce discoverable material?; Circuit Court also affirmed order shifting expenses for e-Discovery services where the Magistrate Judge found that ?(1) ANA advised Appellants that producing the requested discovery would entail significant expense; (2) Appellants were dilatory in communicating with ANA after the district court ordered discovery; and (3) Appellants changed the scope of the requested discovery, increasing BIA?s charges.?
Nature of Case: Third party subpoena/ cost shifting / taxable costs
Electronic Data Involved: ESI
Copyright © 2022, K&L Gates LLP. All Rights Reserved.