Court Modifies Its Prior Cost-Shifting Formula

Quinby v. WestLB AG, 2007 WL 38230 (S.D.N.Y. Jan. 4, 2007)

In this opinion, the court modified its September 5, 2006 order (summarized here) which shifted to the plaintiff 30 percent of the costs of producing the emails of one witness (Barron) restored from backup tapes. After that prior order was entered, defendant submitted an affidavit from its vendor stating that 14 backup tapes had been restored in order to recover Barron’s emails, and that the total cost was $9,187.50. Plaintiff submitted a letter and exhibits in response, pointing out that the 14 tapes also contained the emails of other custodians whose emails were ordered produced and the tapes would, therefore, have had to have been restored in any event. Plaintiff argued that she should be responsible for only 30 percent of the share allocable to Barron’s emails.

The court agreed, and found it unfair to shift a portion of the entire cost since the backup tapes would have had to have been restored even if Barron’s emails had not been ordered produced. The court set out its formula for calculating plaintiff’s share of the cost, which amounted to $448, and ordered plaintiff to remit that amount to defendant within ten days.