Court Denies Motion for Protective Order or Cost-Shifting Related to Request to Utilize Sixty-Seven Search Terms

Juster Acquisition Co., LLC v. N. Hudson Sewerage Auth., No. 12-3427 (JLL), 2013 WL 541972 (D.N.J. Feb. 11, 2013)

In this case, the court denied Defendant’s motion for a protective order “regarding the sixty-seven (67) electronic word searches” demanded by the plaintiff.  It also denied Defendant’s request that the cost of running those searches be shifted to the plaintiff.

Plaintiff’s first Request for Production included a list of 67 proposed search terms to be run against Defendant’s ESI.  In response, Defendant sought a protective order or, alternatively, an order shifting the costs associated with the search, arguing it was “entitled” to a protective order because it had already produced 8000 pages of responsive documents (in hard copy) and because, in its view, the requested search terms were “quite broad and vague.”

The court quickly denied the motion for a protective order, however, finding the defendant had “failed to provide any law or analysis in support of its request . . . .”  Among the court’s reasons for denying the motion were Defendant’s failure to show “how it would be unreasonably cumulative or duplicative to perform the requested discovery search” and Defendant’s failure to provide certification that it had conferred or attempted to confer with the plaintiff to resolve the dispute.

Addressing Defendant’s alternative request for cost-shifting, the court noted that “cost-shifting should only be considered when electronic discovery imposes an undue burden or expense on the responding party” and that “[a]s a preliminary matter, ‘[c]ost shifting is potentially appropriate only when inaccessible data is sought.’”  In this case, the court determined that the defendant “failed to satisfy its burden” of showing that the ESI sought was inaccessible, reasoning, in part, that by “asserting that it ha[d] hired an outside vendor to perform the word searches,” Defendant had “acknowledged that the ESI is accessible.”

Continuing its analysis, the court stated that Defendant “also failed to show that the ESI sought by Juster impose[d] an ‘undue’ burden or expense” and found that Defendant sought “merely to avoid the cost associated with what it presumes to be duplicative and expensive word searches.”  “As a result,” the court could not find that the requested ESI “[fell] into either category of ‘inaccessible’ electronic data” and concluded that Defendant “must bear the attendant discovery costs.”

Although the court determined that these factors were sufficient to deny the defendant’s motion, it went on to “nonetheless” provide additional reasons for its denial and turned to the seven-factor cost-shifting test set forth by the Zubulake court (“(1) the extent to which the request is specifically tailored to discover relevant information; (2) the availability of such information from other sources; (3) the total cost of production, compared to the amount in controversy; (4) the total cost of production; (5) the relative ability of each party to control costs and its incentive to do so; (6) the importance of the issues at stake in the litigation; and 7) the relative benefits to the parties of obtaining the information”).

Summarizing broadly, the court determined that “on balance,” these factors did not support cost-shifting.  The court reasoned, in part, that it was “irrelevant that [Defendant] ha[d] already turned over 8000 pages of documents to [Plaintiff] because ‘production of information in ‘hard copy’ documentary form does not preclude a party from receiving that same information in computerized/electronic form.’”  Moreover, while the defendant alleged that it would cost between $6,000 to $16,000 to “process the word searches and eliminate duplicates,” the amount Plaintiff alleged it was owed was “not less than $41 million”; the court also considered the defendant’s ability to bear the costs.  Notably, the court also pointed out that the defendant had agreed bear its own discovery costs after it had been provided with Plaintiff’s proposed terms.

Finally, the court found that its denial of Defendant’s cost-shifting motion was further supported by the principles of fundamental fairness, relying on Defendant’s agreement to pay for its own discovery costs and the “comparable” nature of the amount of discovery requested of each party (Defendant had, itself, requested the results from one hundred search terms).