Cost Shifting – Page 17 – Electronic Discovery Law

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

Brokaw v. Davol, Inc., Nos. PC 07-5058, PC 07-4048, PC 07-1706, 2011 WL 579039 (R.I. Super. Ct. Feb. 15, 2011)

Dec 01 2011

Key Insight: Court found backup tapes not reasonably accessible in light of the cost of restoration, review and production but granted plaintiff?s motion to compel where plaintiff?s showed ?good cause for some discovery? and held the motion in abeyance until further argument on cost-shifting

Nature of Case: Products liability

Electronic Data Involved: Backup tapes

150 Nassau Assoc. LLC v. RC Dolner LLC, No. 601879/04, 2011 WL 579061 (N.Y. Sup. Ct. Feb. 14, 2011)

Dec 01 2011

Key Insight: Court denied motion to compel production of database data in native format where the same information had been produced in PDF format, where there were no accusations of inconsistencies in the information provided, where neither party addressed the costs of the requested native production and where the native data sought could not be provided without also disclosing irrelevant confidential information

Nature of Case: Breach of contract

Electronic Data Involved: Database

Wood v. Capital One Servs., LLC, No. 5:09-CV-1445, 2011 WL 2154279 (N.D.N.Y. Apr. 15, 2011)

Dec 01 2011

Key Insight: Court denied plaintiff?s motion to compel additional discovery, including ?sweeping searches of ESI using suggested search terms? where, following significant analysis of the rule of proportionality (26(b)(2)(C)), the court determined that the ?minimally relevant information to be developed through the discovery? was ?far outweighed by the burden? associated with it, but left open plaintiff?s option to bear the cost of the discovery himself

Nature of Case: Violations of Fair Debt Collection Practices Act

Electronic Data Involved: ESI

SPM Resorts, Inc. v. Diamond Resorts Mgmt., Inc., 65 So.3d 146 (Fla. Dist. Ct. App. 2011)

Dec 01 2011

Key Insight: Court granted certiorari review and quashed order for plaintiff to pay half the cost of inspection of its own computers where the court reasoned that ?[t]o place a substantial financial burden on a party relating to the production of its adversary?s discovery request does nothing more than require a party to fund its adversaries litigation? and where the order was ?unreasonable and unduly oppressive and [wa]s a departure from the essential requirements of the law.?

Nature of Case: Interference with business relationship

Electronic Data Involved: Computer inspection

Couch v. Wan, No. 1:08cv1621 LJO DLB, 2011 WL 2551546 (E.D. Cal. June 24, 2011)

Dec 01 2011

Key Insight: After defendant reported that the estimated cost of searching its electronically stored information using the search terms provided by plaintiff would be ?at least $54,000? because of the need to hire an outside contractor to assist, the court found that the discovery requests imposed a burden on the defendant that warranted cost shifting and ordered the parties to met and confer to determine an appropriate cost sharing agreement; Reconsideration denied in Couch v. Wan, No. CV F 08-1621 LJO DLB, 2011 WL 291118 (E.D. Cal. July 20, 2011)

Nature of Case: Violations of their free speech rights and violations of the Racketeer Influenced Corrupt Organizations Act (“RICO”)

Electronic Data Involved: ESI

In re Hitachi Television Optical Block Cases, No. 08cv1746 DMS (NLS), 2011 WL 3263781 (S.D. Cal. Aug. 12, 2011)

Dec 01 2011

Key Insight: Despite the intentional deletion of ESI by defendant?s employee, court declined to impose evidentiary sanctions where there was no showing of prejudice (because the vast majority of deleted ESI was recovered); court also denied request for attorneys? costs and fees pursuant to its inherent authority or under Rule 37

Nature of Case: Putative Class Action alleging a product defect

Electronic Data Involved: Emails

Francisco v. Verizon S., Inc., 272 F.R.D. 436 (E.D. Va. 2011)

Dec 01 2011

Key Insight: Court denied defendant?s request for recovery of costs incurred in processing, storage, and production of ESI

Escamilla v. SMS Holdings Corp., No. 09-2120 ADM/JSM, 2011 WL 5025254 (D. Minn. Oct. 21, 2011)

Dec 01 2011

Key Insight: Court affirmed Magistrate Judge?s order requiring defendant to submit his computers for forensic examination, at his own expense, where defendant reinstalled an operating system less than two weeks after plaintiff filed a motion to compel and where, because of the loss of data, plaintiff was therefore prejudiced to an unknown extent?bad faith was not required for such an order; court affirmed order requiring corporate defendant to search hard drives of key employees, the image of a file and print server, and backup tapes dating back five years where the search was not overly broad and where defendant did not establish undue burden?despite its exorbitant estimate regarding backup tapes?in light of the large disparity between estimates from both parties, and where the court noted that much of the costs could have been avoided had SMS fulfilled its preservation duties and not converted to a less accessible format

Nature of Case: Employment litigation – sexual harassment

Electronic Data Involved: ESI

State of California ex rel Fowler v. Caremark RX, LLC, 2010 WL 3991298 (Cal. Ct. App. Oct. 13, 2010):

Dec 01 2010

Key Insight: Where defendants resisted production of electronically stored information and sought to shift the costs of such production to plaintiff by presenting affidavits and expert testimony regarding the expected cost of production which, in large part, was the result of defendants? lack of a data retrieval system for archived information and its failure to suspend archiving documents despite the commencement of related litigation in 2004, and where it was revealed that the expert testimony presented lacked sufficient foundation, the court held that defendants had acted in bad faith and could no longer be trusted and awarded plaintiffs? fees and costs in the amount of $42,978.43; affirmed on appeal

Nature of Case: Violation of False Claims Act

Electronic Data Involved: Archived ESI

Tag:Cost Shifting