Cost Shifting – Page 19 – Electronic Discovery Law

Response Personnel, Inc. v. Aschenbrenner, 909 N.Y.S.2d 433 (N.Y. App. Div. 2010)

Dec 01 2010

Key Insight: Where a lower court denied plaintiff?s motion for a protective order and ordered the production of tax returns and other documents in electronic format at plaintiff?s expense, the appellate court affirmed the denial of the protective order and the order compelling electronic production but found that requiring plaintiff to bear the costs imposed an undue burden where ?generally, the costs of production is borne by the party requesting the production, and the cost of creating electronic documents here would not be inconsequential?

Electronic Data Involved: Tax returns and other documents in electronic form

Goshawk Dedicated, Ltd. v. Amer. Viatical Servs., LLC, 2010 WL 5250360 (N.D. Ga. Oct. 4, 2010)

Dec 01 2010

Key Insight: Clarifying the nature of its order regarding costs, court stated that its prior order requiring plaintiff to deposit funds into the court registry sufficient to cover the third party?s anticipated costs of producing ESI specifically excluded attorney?s fees but did not preclude recovery of them, and ordered compliance with its prior order

Nature of Case: Fraud and negligence claims

Electronic Data Involved: ESI

Silverman v. Shaoul, 913 N.Y.S.2d 870 (N.Y. Sup. Ct. 2010)

Dec 01 2010

Key Insight: Court held that ?precedent shows that the requesting party bears the cost of electronic discovery when the data sought is ?not reasonably available? upon a showing of undue burden and denied defendant?s order to show cause to compel plaintiffs to pay the costs where defendants data was neither archived nor deleted but simply stored in a number of places and interspersed with other business documents

Electronic Data Involved: ESI

Chenault v. Dorel Indus., Inc., No. A-08-CA-354-SS, 2010 WL 3064007 (W.D. Tex. Aug. 2, 2010)

Dec 01 2010

Key Insight: Court approved defendant?s recovery of costs related to the creation of an electronic database where the database was utilized to reduce the otherwise recoverable costs of printing the approximately 800,000 pages of emails produced to plaintiffs

Electronic Data Involved: Costs of electronic database created in lieu of printing emails for production

Robotic Parking Sys., Inc. v. City of Hoboken, 2010 WL 324524 (D.N.J. Jan. 19, 2010) (Unpublished)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

Phillip M. Adams & Assoc., LLC v. Fujitsu, Ltd., 2010 WL 1064429 (D. Utah Mar. 18, 2010)

Dec 01 2010

Key Insight: Where defendant subpoenaed third parties seeking production of communications between defendant and those third parties from years prior, and where defendant could not produce those communications itself, court found the information relevant and denied third parties? motion to quash but, noting that defendant?s insufficient document retention policies resulted in the need to subpoena the information, court ordered defendant to bear the costs of production

Nature of Case: Patent infringement

Electronic Data Involved: Emails, ESI

Universal Del., Inc. v. Comdata Corp., 2010 WL 1381225 (E.D. Pa. Mar. 31, 2010)

Dec 01 2010

Key Insight: Where third-party (and former defendant) signed stipulation to preserve and produce ESI as if still a party to the litigation and later sought reimbursement for the review and production of data in a particular database, court ordered a database be created comprised of the four custodians at issue, that plaintiff pay $4085 to the vendor as a ?start-up fee? (pursuant to their agreement to do so), and that plaintiff and third-party split the remaining costs of creating the database, but ordered third-party to bear the costs of its own review prior to production

Nature of Case: Antitrist litigation

Electronic Data Involved: Database

MLM Props., LLC v. Country Cas. Ins. Co., 2010 WL 1948609 (D. Or. May 7, 2010)

Dec 01 2010

Key Insight: Where the court ordered plaintiffs to pay defendant?s expenses and fees related to a motion for sanctions arising from plaintiff?s delayed production of documents previously characterized as unrecoverable due to a damaged backup tape, court denied motion for additional sanctions where plaintiffs argued no prejudice resulted from the delay and where the court found no evidence to justify sanctions beyond those already imposed

Nature of Case: Breach of insurance contract and intentional inter-ference with economic relationships

Electronic Data Involved: ESI

URS Corp. v. Isham, 2010 WL 2428841 (D.S.C. June 11, 2010)

Dec 01 2010

Key Insight: Court granted plaintiff?s motion for preservation and inspection of defendant?s relevant hardware but found plaintiff?s proposed protocol overly burdensome and thus ordered adherence to defendant?s proposed protocol which called for more targeted searches using terms proposed by plaintiff and provided a more reasonable time frame for the production of documents and privilege logs; parties to split the cost

Nature of Case: Claims arising from employees’ departure from plaintiff’s company to join defendant’s

Electronic Data Involved: Hard drives

McGarry v. Becher, 2009 WL 1363456 (S.D. Ind. May 13, 2009)

Dec 01 2009

Key Insight: Rejecting defendant?s claims that production of data stored in taser units related to the time and number of firings would be unduly burdensome in light of the high number of times the tasers were fired, including test firings required each day, Court granted in part plaintiff?s motion to compel production of the data upon finding that the device stored data related to no more than 585 firings, among other things, and where defendants made no showing that the printing of those entries would be unduly expensive; court ordered plaintiff to bear any cost of printing or downloading the information in excess of $200

Nature of Case: Potential class action regarding use of tasers in county jail

Electronic Data Involved: Data stored in taser related to date and time fired

Tag:Cost Shifting