Cost Shifting – Page 21 – Electronic Discovery Law

Omnicare, Inc. v. Mariner Health Mgmt. Co., 2009 WL 1515609 (Del. Ch. May 29, 2009)(Unpublished)

Dec 01 2009

Key Insight: Where plaintiff sought to compel defendants to restore backup tapes containing emails that were automatically deleted but where defendants objected to restoration and production due to cost, court denied plaintiff?s motion and ordered defendants to produce relevant data from their ?active stores? first in order to assess the likelihood of finding relevant, discoverable data on the backup tapes; if active stores showed a likelihood of recovery of discoverable data on the backup tapes, court stated that processing at defendants? expense would be appropriate

Nature of Case: Dispute arising between pharamaceutcal suppliers and nursing home operator related to contractual obligations and billing

Electronic Data Involved: Backup tapes

Lawson v. Plantation Gen. Hosp., L.P., 2009 WL 2868891 (S.D. Fla. Aug. 27, 2009)

Dec 01 2009

Key Insight: Despite the ?clearly burdensome? process required to restore, review and produce the requested ESI, court ordered production of a specific category of ESI, where ?fairness demand[ed]? plaintiff have an opportunity to review? it, but ordered that if plaintiff continued to desire production of the remaining categories ?for which plaintiff ha[d] a lesser need, in light of all of the other discovery in this matter,? plaintiff must pay half the cost

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

Laethem Equip. Co. v. Deere & Co., 2009 WL 2777334 (E.D. Mich. Aug. 27, 2009)

Dec 01 2009

Key Insight: Court ruled on defendant?s objections to magistrate?s order, including, among other things, addressing issues of privilege pursuant to FRE 502(b) and analyzing the propriety of claims of privilege as to certain categories of documents, including those stored on a server that was available to all employees; court also ordered each party to bear the costs of production for the documents it requested (a direct contradiction to the presumption that the responding party must bear the expense of compliance) where such an order would ?curb [the] bilateral tendency? to broaden discovery demands to include both important and marginal information ?whose primary utility would be found in the burden and cost of production to the other side?

Nature of Case: Breach of contract, statutory violations, tortious interference

Electronic Data Involved: ESI

Fells v. Virginia Dept. of Transp., 605 F. Supp. 2d 740 (E.D. Va. Mar. 25, 2009)

Dec 01 2009

Key Insight: Identifying a difference between costs expended for converting a paper document into an electronic one and creating electronically searchable documents, the court denied defendant?s request for recovery of costs related to ?electronic records initial processing, Metadata extraction, [and] file conversion?

Nature of Case: Employment litigation

Major Tours, Inc. v. Colorel, 2009 WL 3446761 (D.N.J. Oct. 20, 2009)

Dec 01 2009

Key Insight: Court granted protective order precluding obligation to search archived emails or emails stored on backup tapes where such emails were ?not reasonably accessible? in light of the estimated $1.5 million retrieval costs and because backup tapes are generally considered inaccessible, and where plaintiffs failed to establish good cause for such production; where defendant offered a ?scaled back alternative,? court ordered parties to split the cost of retrieving emails from a particular subset of backup tapes and provided plaintiffs the opportunity to compel searches of an additional subset of tapes – at their expense – including the cost of review

Nature of Case: Allegations of discriminatory safety inspections of African American owned buses en route to Atlantic City

Electronic Data Involved: Backup tapes, email

In re McKesson Governmental Entities Average Wholesale Price Litig., 2009 WL 3706898 (N.D. Cal. Nov. 4, 2009)

Dec 01 2009

Key Insight: Where government agency objected to defendants? subpoena for the production of documents previously produced in a separate litigation on grounds of undue burden and cost based on the assertion that it needed to re-review all documents prior to production because some documents were subject to the deliberative process privilege and others were highly confidential, court held that the privilege had been waived by the agency?s failure to object in its initial response and by the production in separate litigation, ordered the documents produced under the POD ?Confidential, For Outside Attorney Eyes Only? and ordered defendants to bear the costs ?of copying and producing the documents in electronic form?

Nature of Case: Allegations that defendants artificially increased the published price of prescription drugs

Electronic Data Involved: ESI previously produced in separate litigation and maintained in database by third party

In re Nuvaring Prod. Liab. Litig., 2009 WL 2486330 (E.D. Mo. Aug. 11, 2009)

Dec 01 2009

Key Insight: Court denied defendants? motion for cost sharing for their review and production of electronically stored information where the parties had implicitly agreed to be responsible for their own expenses, where plaintiffs already took steps to eliminate the cost to defendants of repeatedly producing documents, and where defendants failed to establish that plaintiffs? request had caused undue burden or expense or that they would in future; court instructed defendants to file motions for protective orders specifically identifying the requests creating the burden and expense to allow the court to address the objections

Nature of Case: Products liability

Electronic Data Involved: ESI

Viacom Int?l, Inc. v. YouTube Inc., 2009 WL 102808 (N.D. Cal. Jan. 14, 2009)

Dec 01 2009

Key Insight: Court granted defendants? motion to compel production of third party?s materials related to plaintiffs despite objections where documents sought were relevant and where the alleged burden was insufficient in light of probable reimbursement to third party by plaintiffs, plaintiffs? performance of the necessary privilege review, and third party?s prior success in reducing the volume of responsive documents; where defendants sought third party material unrelated to plaintiffs, court ordered defendants and third party to meet and confer regarding scope of production and ordered defendants to bear the cost; court also ordered meet and confer regarding format of production, including specific consideration of granting defendants access to Kroll database where documents were stored

Nature of Case: Copyright infringement

Electronic Data Involved: ESI

D.G ex rel. Stricklin v. Henry, 2009 WL 455266 (N.D. Okla. Feb. 20, 2009)

Dec 01 2009

Key Insight: Court granted plaintiff?s motion seeking production of emails from particular custodians and rejected defendant?s argument that cost of production should be shifted where defendants did not challenge the relevance of the emails at issue, where plaintiff?s ?reasonably limited their request to avoid undue burden? to defendants, and where the court?s consideration of the Zubulake factors resulted in a determination that cost shifting was not appropriate

Nature of Case: Class action against DSHS

Electronic Data Involved: Emails

CBT Flint Partners, LLC v. Return Path, Inc., 2009 WL 5159761 (N.D. Ga. Dec. 30, 2009)

Dec 01 2009

Key Insight: Recognizing a ?division of opinion? as to whether e-discovery vendor costs are recoverable, court called the ?highly technical? services provided by the e-discovery vendor the ?21st century equivalent of making copies,? noted that ?taxation of these costs will encourage litigants to exercise restraint in burdening the opposing party with the huge cost of unlimited demand for electronic discovery? and overruled and denied plaintiff?s objection to taxation as costs of the e-discovery consultant?s fees; Summary judgment reversed and costs vacated in CBT Flint Partners, LLC v. Return Path, Inc., Nos. 1010-1201, 2010-1203, 2011 WL 3487023 (Fed. Cir. Aug. 10, 2011)

Nature of Case: Patent Infringement

Electronic Data Involved: ESI

Tag:Cost Shifting