Lack of “Meaningful” Communication with Opposing Counsel, Client Results in “Overly Complex” and Burdensome Agreement; Partial Costs Shifted

Bailey v. Brookdale Univ. Hosp. Med. Ctr., No. C 16-2195(ADS)(AKT), 2017 WL 2616957 (E.D.N.Y. June 16, 2017)

In this single-plaintiff employment litigation, Plaintiff claimed that the cost of production, equaling approximately $2,000-$3,000, was unduly burdensome in light of his personal financial situation, despite the existence of an ESI agreement between the parties, “so-ordered” by the court. Ultimately, the court concluded that although the data was not inaccessible, cost-shifting was appropriate because it appeared that the agreement proposed by the defendants was of a type “typically utilized in a more complex litigation involving multiple parties and corporate entities” and, more notably, because it appeared that Plaintiff’s counsel had not engaged in a “meaningful meet-and-confer session with opposing counsel concerning t[he] Agreement” or thoroughly reviewed the Agreement prior to signing it.  In addition to failing to properly confer with opposing counsel, the court concluded that “Plaintiff’s counsel did not engage in meaningful discussions with his client regarding the terms of the proposed agreement and what costs might be incurred . . . .”  Thus, absent any indication that Defendants would consider an alternative and less expensive form of production, the court ordered 40% of production costs shifted to Defendants and indicated that “fairness dictate[d]” that Plaintiff’s remaining costs “should be borne by Plaintiff’s counsel rather than Plaintiff himself.”

The court instructed counsel in this case to meet to reach an agreement on the method by which ESI would be produced. The court “‘so ordered’’ the parties’ ESI agreement” thereafter.  Notwithstanding the agreement, Plaintiff later sought to “undo” certain provisions, arguing that to produce ESI in the agreed-upon manner would be unduly burdensome.  At the court’s request, Plaintiff submitted an affidavit indicating that the estimated cost of production would be approximately $2,000-$3,000 and that such a cost would inflict “severe financial hardship” on Plaintiff who earned approximately $90,000 annually, but who was also the sole breadwinner for his family of five.

Taking up the issue, the court first analyzed whether the requested ESI could be considered inaccessible sufficient to support cost-shifting and concluded it could not. Despite this, the court’s analysis continued and laid out the obligations of the parties and counsel to meet and confer and to cooperate regarding the production of ESI – procedures which the court concluded “were not adequately followed in this case.”  As indicated above, the court instead concluded that Defendants had presented an agreement typically used in “more complex litigation” and that Plaintiff’s counsel had failed to appropriately review and negotiate the provisions of the agreement or to “engage in meaningful discussions with his client” before signing it.  Thus, counsel, “placed his client in the position of having to abide by an Agreement, which, in the current context, appear[ed] overly complex in light of the straightforward subject matter and claims involved” in the case.

Ultimately, noting the lack of any indication that Defendants were amenable to considering an alternative and potentially less expensive format of production, the court ordered that to the extent they insisted on production “made to the letter of the requirements/formatting they set forth in the Agreement,” partial cost-shifting was appropriate. Accordingly, the court directed that 40% of the costs be borne by Defendants and indicated that fairness dictated that Plaintiff’s counsel should pay the remaining 60% assessed to Plaintiff.

A full copy of the court’s order is available here.