Cost Shifting – Page 15 – Electronic Discovery Law

Hanwha Azdel, Inc. v. C&D Zodiac, Inc., No. 6:12-cv-00023, 2012 WL 6726412 (W.D. Va. Dec. 27, 2012)

Dec 01 2012

Key Insight: Where Defendant produced forty gigabytes of material on a single memory stick organized into folders by search term, with no other organization by custodian or otherwise, court noted that ?[o]rganizing a production to reflect how the information is kept ?in the usual course of business? sometimes requires the producing party to include different identifying information according to the type of document or file produced,? and that ?[e]mails specifically are produced in the usual course of business when responsive emails are arranged ?by custodian, in chronological order and with attachments, if any?? and found that the production was not in an appropriate format in this case; court ordered Defendant to bear the costs to convert the ESI into a readily usable format (estimated to be $8,463.00)

Electronic Data Involved: ESI

Cannata v. Wyndham Worldwide Corp., No. 2:10-cv-00068-PMP-VCF, 2012 WL 528224 (D. Nev. Feb. 17, 2012)

Dec 01 2012

Key Insight: Where parties could not agree on search protocol, including the number of custodians and number of search terms and whether ?terms of a sexual nature? should be included as search terms, the court appointed a special master to resolve the dispute, split the costs of the special master (unevenly) between the parties, and ordered that if the number of terms and custodians combined exceeded 40, plaintiff would reimburse 5% of defendant?s e-Discovery compliance costs for each occurrence (e.g., if the final search involved 22 custodians and 25 sites, plaintiffs would be responsible for 25% of defendants? cost [7 x 5%]); because sexual harassment related claims were at issue, ?ESI containing sexual terms is discoverable?

Nature of Case: Sexual harassment, sexual discrimination, hostile work environment

Electronic Data Involved: ESI

Pouncil v. Branch Law Firm, No. 10-1314-JTM-DJW, 2012 WL 777500 (D. Kan. Mar. 7, 2012)

Dec 01 2012

Key Insight: Where evidence indicated that defendant?s responses to discovery were incomplete, court ordered defendant to ?proceed with the forensic search of their computer systems using protocols agreed upon by the parties? but declined to compel defendant to bear the cost of the examination until final costs were known; defendant was also ordered to institute a litigation hold where defendant?s deposition testimony established that none had previously been issued

Nature of Case: Malpractice

Electronic Data Involved: ESI

Rawal v. United Air Lines Inc., No. 07 C 5561, 2012 WL 581146 (N.D. Ill. Feb. 22, 2012)

Dec 01 2012

Key Insight: Court sustained objections to taxation of costs related to processing email accounts and other files into searchable format where the services were performed by the ?litigation support department? of defendant?s outside counsel and went ?far beyond the mere reproduction or exemplification of documents? and instead comprised the ?kind of work conventionally performed by attorneys and paralegals, the costs of which are not recoverable?

Nature of Case: Discrimination and retaliation

In re Subpoena to Creeden & Assocs., No. 12C 5573, 2012 WL 4580841 (N.D. Ill. Sept. 28, 2012)

Dec 01 2012

Key Insight: Addressing plaintiff?s motion to enforce a subpoena, the court focused on the issue of the burden to the third party and granted plaintiff?s motion as to the requests for production with some limitations and also conducted an 8-part cost shifting analysis which resulted in the court?s order that plaintiff was to bear 60 of the third party?s ?staff research and production costs? and 30 of the third party?s ?legal costs?; court indicated that the ?lower legal percentage [was] a reflection of what the Court believe[d] was [the third-party?s] recalcitrance to meaningfully participate in legal negotiations concerning discovery thus far? and that ?[t]he lower legal fee-shifting amount is also an attempt to get [the third party] to object only to those points it really cares about?

Nature of Case: Antitrust

United States v. Comty. Health Ctr. Of Buffalo, No. 05-CV-237A(F), 2012 WL 3136485 (W.D.N.Y. Aug. 1, 2012)

Dec 01 2012

Key Insight: Where plaintiff was able to recover potentially relevant ESI on defendants? backup tapes which had been produced to plaintiff without restriction following defendants erroneous determination that no responsive documents were contained thereon (as the result of using insufficient software to read the data) and where plaintiff therefore sought unrestricted access to the information, except for privileged documents, and for defendants to pay plaintiff?s cost to review the information, the court determined that defendants? production of the tapes waived their objections to Plaintiff?s efforts to locate responsive information but that the failure to identify potentially responsive documents was not in bad faith and that the information on the tapes was not reasonably accessible and denied Plaintiffs? motion for reimbursement for the cost of reviewing the tapes

Nature of Case: False Claims Act

Electronic Data Involved: ESI on “back-up magnetic tapes”

White Baptist Mem?l Healthcare Corp., No. 08-2478, 2012 WL 3776918 (W.D. Tenn. Aug. 29, 2012)

Dec 01 2012

Key Insight: Court denied plaintiff?s motion seeking reversal of Clerk?s entry of bill of costs and specifically found that costs related to ?OCR capture? which the court acknowledged was a ?form of electronic discovery? were recoverable and that the OCR capture in this case was a necessary party of the discovery process

Nature of Case: Violation of FLSA

Electronic Data Involved: Costs related to electronic discovery

Perez-Garcia v. Puerto Rico Ports Auth., No. 08-1448 (GAG), 2012 WL 2553274 (D.P.R. July 3, 2012)

Dec 01 2012

Key Insight: Court found request for sanctions for defendant?s failure to retain records dating back to 1995 was not supported by the rules or the case law on the subject and stated that ?Corporations may maintain their records according to their business practices, so long as the record keeping does not afoul [sic] of the rules outlined by the Federal Rules of Civil Procedure, the Federal Rules of Evidence and judicially created rules of the court.? Addressing plaintiff?s citation to an Eighth Circuit case ?that states that a negative inference can be given when the company?s policy for retention of documents is unreasonable or in bad faith,? (Remington Arms Co. , 836 FRD 1103 (8th Cir. 1988)) the court found that defendant?s policy was neither unreasonable nor in bad faith

Nature of Case: Claims arising from crash of golf cart perhaps related to faulty emergency brake

Electronic Data Involved: ESI

Minter v. Wells Fargo Bank, N.A., —F.R.D.—, 2012 WL 4903315 (D. Md. Oct. 12, 2012)

Dec 01 2012

Key Insight: Addressing production of business records pursuant to Rule 33(d) and, more specifically, who should bear the cost of imaging and segregating the relevant information from the many other pages of information with which the at-issue data was maintained, the court addressed the question of who would bear a heavier burden in locating and extracting the information (or whether the burden was even), determined it would be the plaintiffs (noting, for example defendant?s reliance on particular software not available to plaintiffs) and rejected defendant?s offer to do the work if plaintiffs bore the costs; court found that defendant must bear the cost of imaging and producing the data requested; court also addressed case scheduling in light of the time estimates for accomplishing the production and considered defendant?s resources, including the number of scanners and personnel that were required to complete the task, before ordering a deadline accordingly

Nature of Case: Alleged scheme to generate unlawful fees related to loan applications

Electronic Data Involved: Rule 33(d) business records

IWOI, LLC v. Monaco Coach Corp., No. 07-3453, 2011 WL 2038714 (N.D. Ill. May 24, 2011)

Dec 01 2011

Key Insight: Where defendant failed to conduct a sufficient search for responsive information and where an important email was located only upon a forensic search of defendant?s computer system after plaintiff offered to bear the costs, court ordered that half of the costs of the search be shifted to defendant

Nature of Case: Breach of warranty and violations of certain state law proscriptions against consumer fraud in connection with sale of motorcoach

Electronic Data Involved: Email

Tag:Cost Shifting