Cost Shifting – Page 12 – Electronic Discovery Law

Connecticut Gen. Life Ins. V. Earl Scheib, Inc., No. 11-CV-0788-GPC (WVG), 2013 WL 485846 (S.D. Cal. Feb. 6, 2013)

Dec 01 2013

Key Insight: Where Defendant presented evidence that the cost of retrieving the requested information?not including the cost of attorney review or the time spent coordinating the production–was equal to the amount in controversy, the court concluded that the requests at issue were unduly burdensome and found that even where Plaintiff had explained the relevancy of the information sought, ?the expense associated with responding ? [was] too great when weighed against what is at stake in the litigation?; court?s analysis included consideration of inaccessibility based on the costs of production and noted that other discovery was available

Electronic Data Involved: ESI

In re Am. Nurses Assoc., No. 08-CV-0378 2013 WL 588992 (D. Md. Feb. 13, 2013)

Dec 01 2013

Key Insight: Relying on Fed R Civ P 45(c), court granted third party?s request to shift discovery costs related to its search for and production of requested information and noted that the costs could have been controlled had plaintiffs participated in the selection of an e-Discovery vendor more quickly following the court?s original order shifting costs (the Scope of Work and the Estimated Cost Overview had been amended six times) and had plaintiffs sought the at-issue documents from the defendant hospitals first, rather than a third party; court declined to shift all of the third party?s attorneys fees, however, noting that ?[s]ubpoenas are a cost of doing business in today?s society?

Electronic Data Involved: Database contents, ESI

FDIC v. Giannoulias, No. 12 C 1665, 2013 WL 5762397 (N.D. Ill. Oct. 23, 2013)

Dec 01 2013

Key Insight: Where defendants propounded 242 requests for documents, trial court declined to require FDIC to review thousands of documents ?to weed out a presumably small subset of irrelevant materials,? or to organize its Phase II production according to defendants? numerous discovery requests; court granted in part and denied in part the parties? respective motions concerning search terms to be used to identify responsive material, and ruled that FDIC would bear the costs of production as they arose subject to the possibility that the court may later require contribution from the defendants; court further directed FDIC to submit to the court a revised proposed ESI protocol

Nature of Case: Receiver sued former directors and officers of bank to recover approximately $114 million in losses bank suffered on 20 commercial real estate loans

Electronic Data Involved: ESI, including email

Fed. Deposit Ins. Co. v. Johnson, No. 2:12-cv-00209-KJD-PAL, 2013 WL 1195698 (D. Nev. Mar. 22, 2013)

Dec 01 2013

Key Insight: Considering competing ESI protocols, court approved FDIC?s protocol which included provision that Defendant would pay $.06 per page for documents selected for physical production after review in an electronic database citing, among other things, the fact that the FDIC had already spent $791,000 to locate and produce responsive information and relying on a line of cases ?which have held that a party responding to discovery requests is responsible for the initial costs of reviewing and preparing paper documents and ESI for inspection and copying, but is not responsible for paying copying costs for voluminous materials.?

Electronic Data Involved: ESI

James v. UMG Recordings, Inc., No. 11-cv-01613-SI (MEJ), 2013 WL 5978322 (N.D. Cal. Nov. 8, 2013)

Dec 01 2013

Key Insight: Where plaintiffs could surely foresee the need to manipulate royalty data but did not specify production in electronic form, and defendant had already twice produced the documents and argued that production of electronically formatted royalty statements would require creation of new documents not currently in existence, court denied plaintiffs’ motion to compel production of the data in electronic format, stating that plaintiffs’ proffered justification that Excel format would be more convenient “falls far short of the mark”; court further denied plaintiffs’ request for receipts data, finding that the burden of reprogramming royalty database and creating new software to extract information far outweighed usefulness of ordering production given that plaintiffs stated they could discern the data by extrapolation

Nature of Case: Consolidated putative class action for breach of contract and other claims filed by recording artists and producers who alleged that defendant underpaid royalties on digital downloads of plaintiffs’ recordings

Electronic Data Involved: Royalty statements in Excel format, receipts from download transactions with vendors

D.G. ex rel Strickland v. Yarbrough, No. 08-CV-074-GKF-FHM, 2013 WL 1343151 (N.D. Okla. Mar. 31, 2013)

Dec 01 2013

Key Insight: Addressing magistrate judge?s recommendations on plaintiffs? Motion for Award of Class Counsel Fees and Expenses, the district court accepted the magistrate judge?s recommendation that plaintiffs be awarded out of pocket expenses related to data storage and hosting (of electronic discovery), with some reductions; district could did not accept recommendation that plaintiffs recover for attorneys fees related to ?temporary attorneys? who conducted review of emails where there was no description provided of the work performed and where the district court took issue with plaintiffs characterization of the time as an ?expense? ?[r]ather than properly documenting and describing the time expended by the[ ] temporary attorneys?

Nature of Case: Class action, recovery of attorneys fees pursuant to 42 USC ? 1988

Parsi v. Daioleslam, No. 08-705 (JDB), 2013 WL 1403226 (D.D.C. Apr. 8, 2013)

Dec 01 2013

Key Insight: Court addressed Defendant?s final bill of recoverable costs and request for reimbursement for expenses related to his prior motion for sanctions, including costs related to two rounds of forensic imaging by PricewaterhouseCoopers, and, after deducting and discounting certain costs, awarded recovery in the amount of $71,624.08 for the costs of imaging and related attorneys? fees

Electronic Data Involved: Costs related to forensic imaging

Thornton v. Morgan Stanley Smith Barney, LLC, No. 12-CV-298-JED-FHM, 2013 WL 1890706 (N.D. Okla. May 3, 2013)

Dec 01 2013

Key Insight: Where defendant sought to shift costs based on the expected expense of reviewing and producing the emails which was estimated to be more than $500,000, the court acknowledged that cost could be a legitimate basis for cost shifting under Rule 26(b)(2)(C), but found that the burden of the requested discovery did not outweigh its likely benefit and was not disproportionate to the case and also noted that the defendant had not established that ?a particular level of review is necessary in this case or that a ?claw back? agreement or [FRE] 502 order would not reduce or eliminate the estimated costs?

Electronic Data Involved: Email

Fair Hous. Ctr. of S.W. Mich. V. Hunt, No. 1:09-cv-593, 2013 WL 5719152 (W.D. Mich. Oct. 21, 2013)

Dec 01 2013

Key Insight: Ruling on plaintiffs? motion for taxation of attorney?s fees and costs, magistrate judge concluded that, although plaintiffs? counsel was entitled to award of fees, fee request was unreasonable in part because the hours devoted to the case were excessive; magistrate judge harshly criticized counsel?s ?unreasonable zeal? and ?single-minded focus? on discovery of ESI: ?The level of effort expended by plaintiffs? counsel to track down the last responsive e-mail . . . was not reasonable in this case. It appeared to this court on more than one occasion that plaintiffs were treating the case as a litigation workshop on discovery of ESI rather than a lawsuit. This case did not involve discovery of patent records contained in Ford Motor Company?s super-computers. Rather, the subject matter of the litigation was an apartment complex in Kalamazoo, run by a marginally competent apartment manager who used a desktop and a laptop. He was often in over his head, especially with regard to record-keeping and computer use. Ninety-nine out of 100 lawyers would never consider making this case the occasion for extensive discovery of electronic evidence. And no client paying his or her own bills would ever authorize such an expensive hunt for marginal evidence.?

Nature of Case: Housing discrimination

Electronic Data Involved: ESI, email

Lynch v. Math-U-See, Inc., No. 13cv402-GPC (WMc), 2013 WL 2444662 (S.D. Cal. June 4, 2013)

Dec 01 2013

Key Insight: Court declined to quash subpoena based on the burden of reviewing the requested emails prior to production where, because the request sought all messages to or from particular persons, the court determined that no review of the emails was necessary (that is to say, if the email was to or from one of the identified persons, it was responsive to the subpoena and thus subject to production regardless of content); because the movant was a non-party, however, the court indicated its inclination to set a reasonable cost of production, before production was complete, to prevent the responding party from manipulating production to increase the award and to streamline production and ordered the requesting party to pay the responding non-party $420.00 ?as reasonable compensation for compliance?

Electronic Data Involved: Emails

Tag:Cost Shifting