Cost Shifting – Page 17 – Electronic Discovery Law

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

In re Nat?l Assoc. of Music Merchs., Musical Instruments & Equip. Antitrust Litig., MDL No. 2121, 2011 WL 6372826 (S.D. Cal. Dec. 19, 2011)

Dec 01 2011

Key Insight: Court denied motion to compel defendant to re-run searches using commonly used acronyms where defendant had already run search terms that had been agreed upon by the parties and plaintiff had ample opportunity to ask for the abbreviations to be used and where the court determined that he burden of re-searching outweighed the benefit; where plaintiff was willing to bear the cost of ?running the searches and conducting the review in their request,? however, court would permit further search of specified custodians for one specifically identified acronym

Nature of Case: Antitrust

Electronic Data Involved: ESI

Hudson v. AIH Receivable Mgmt. Servs. LLC, No 10-2287-JAR-KGG, 2011 WL 1402224 (D. Kan. Apr. 13, 2011)

Dec 01 2011

Key Insight: Where defendant, ?a small company with 13 employees? who presented evidence that it was not profitable, objected to discovery pursuant to 26(b)(2)(C)(iii) based on an estimated cost of $2,630 to comply with plaintiff?s request (which included, in part, the cost of necessary software to complete the review), the court declined to shift the cost of production but stated that defendant could choose to produce un-reviewed ESI to plaintiff, thus shifting the cost of software necessary for review, but if defendant wished to review the data first, it would bear the costs of doing so

Nature of Case: Sexual harassment

Electronic Data Involved: ESI

Boucher v. First Am. Title Ins. Co., No. C10-199RAJ, 2011 WL 5299497 (W.D. Wash. Nov. 4, 2011)

Dec 01 2011

Key Insight: Following discussion of the breadth of original requests and subsequent narrowing of scope, court addressed duty of defendant to produce evidence from third-party who provided defendant with mortgage-related documents and from independent agents and ordered production from those parties where evidence indicated that at least some agents had contractually agreed to produce documents thus evidencing defendant?s control and where provider of mortgage-documents did not object to disclosure

Nature of Case: Class action

Electronic Data Involved: ESI from third parties

Robotic Parking Sys., Inc. v. City of Hoboken, 2010 WL 324524 (D.N.J. Jan. 19, 2010) (Unpublished)

Dec 01 2010

Key Insight: Court granted intervenor?s motion for a protective order where plaintiff (intervenor?s direct competitor) sought access to defendant?s garage operating computers possibly containing intervenor?s trade secrets but denied request to prevent access entirely where such access was necessary for plaintiff?s case, where there was no showing of irrelevance or burden, and where intervenor?s concerns were ?too speculative to warrant non-disclosure?; court ordered parties to split cost of software necessary for defendant to view forensic images produced by plaintiff where plaintiff sought to use the images at trial, where defendant had no way to view the court ordered production otherwise, and where the parties failed to properly discuss and agree upon discovery issues, including the cost of production, pursuant to local rule

Nature of Case: Breach of contract

Electronic Data Involved: ESI, source code

Tag:Cost Shifting