Cost Shifting – Page 23 – Electronic Discovery Law

Thielen v. Buongiorno USA, Inc., 2007 WL 465680 (W.D. Mich. Feb. 8, 2007)

Dec 01 2007

Key Insight: Court granted defendant’s motion to compel forensic inspection of plaintiff’s computer and defendant’s sole expense, but limited the scope of the inspection to determining whether, during the relevant time period, plaintiff accessed defendant’s website or a website which advertised defendant’s services, what interaction plaintiff had with such websites and what, if any, information concerning those internet transactions was subsequently deleted

Nature of Case: Cellular phone user alleged that defendant violated the Telephone Consumer Protection Act of 1991 by sending text messages to plaintiff’s cell phone without his permission

Electronic Data Involved: Plaintiff’s computer hard drive

Autotech Techs. Ltd. P?ship v. Automationdirect.com, Inc., 2007 WL 2746650 (N.D. Ill. Sept. 17, 2007)

Dec 01 2007

Key Insight: Where defendant argued that extracting requested information regarding 56,000 to 60,000 customer invoices from computer system would cost as much as $80,000, and alternative method for extracting information proposed by plaintiff was unsuccessful, court held parties to their prior agreement and determined that reasonable allocation was for plaintiff to pay 62 percent and defendant to pay the remainder; court further ordered defendant to provide proof of actual cost and proof of actual payment and stated that, if defendant is able to extract information for less than $80,000 or if parties arrive at different cost-shifting formula, that will control

Nature of Case: Trademark infringement

Electronic Data Involved: Customer information stored in database

Io Group, Inc. v. Veoh Networks, Inc., 2007 WL 1113800 (N.D. Cal. Apr. 13, 2007)

Dec 01 2007

Key Insight: Court granted plaintiff’s motion to compel and denied defendant’s request to shift costs of production to plaintiff, since defendant provided no information about whether and how such information was “inaccessible” or any other information relevant to cost-shifting determination under Zubulake III; court encouraged parties to agree on most efficient means of production and noted that plaintiff had indicated willingness to provide high capacity storage devices

Nature of Case: Copyright infringement

Electronic Data Involved: Adult video content; website traffic information

O’Bar v. Lowe’s Home Centers, Inc., 2007 WL 1299180 (W.D.N.C. May 2, 2007)

Key Insight: Court ordered parties to develop joint precertification discovery plan and articulated detailed guidelines for discovery of ESI adapted from the ?Suggested Protocol for Discovery of Electronically Stored Information? set forth by the United States District Court for the District of Maryland

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

Paul v. USIS Commercial Servs., Inc.Slip Copy, 2007 WL 2727222 (D. Colo. Sept. 17, 2007)

Dec 01 2007

Key Insight: Court denied defendant?s post-trial motion for reimbursement of $292,000 incurred to preserve large volume of ESI as demanded by plaintiff at outset of litigation, finding that plaintiffs? demand, while arguably unreasonable, was not so abusive as to warrant sanctions; court noted that, where plaintiff demanded preservation of huge amounts of ESI and parties were not able to agree on narrowed scope of information to be preserved, defendant, ?like all parties, was left to make a reasonable judgment about what information must be preserved?

Nature of Case: Putative class action under Fair Credit Reporting Act

Electronic Data Involved: Information in all databases maintained by defendant, any and all e-mail, and other broad categories of information

Nat?l Union Fire Ins. Co. of Pittsburgh v. Clearwater Ins. Co., 2007 WL 2106098 (S.D.N.Y. July 21. 2007)

Dec 01 2007

Key Insight: Court denied motion to compel production of email from 113 backup tapes, estimated to cost between $45,200 and $79,100, plus attorney’s time in reviewing documents, since defendant had not sufficiently demonstrated that responsive emails relating to settlement negotiations existed on the backup tapes, which covered time periods that were months after the settlement was reached; court noted that if moving party wished to pay to restore the backup tapes, it may do so

Nature of Case: Insurance coverage

Electronic Data Involved: Email stored on backup tapes

In re Seroquel Prods. Liab. Litig., 2007 WL 4287676 (M.D. Fla. Dec. 6, 2007)

Dec 01 2007

Key Insight: Court rejected non-party’s claim that it was entitled to recover full amount of fees expended to retrieve, identify and review 25 project files sought by plaintiffs (estimated to be $28,950, including $18,750 in attorneys fees for 50 hours of review), since non-party should have reasonably anticipated being involved in the discovery process of subsequent litigation concerning the marketing/prescribing behavior it studied, the cost could be borne by the non-party as overhead, and cost was less than four fifths (4/5) of one percent of the revenue the non-party generated from work on Seroquel products

Nature of Case: Drug product liability class action

Electronic Data Involved: 25 electronically-maintained project files relating to market research that non-party Harris performed on behalf of AstraZeneca with respect to Seroquel

Haka v. Lincoln County, 246 F.R.D. 577 (W.D. Wis. 2007)

Dec 01 2007

Key Insight: Balancing relevant factors, court ruled that fairness and efficiency required parties to proceed with search for ESI incrementally and limited initial search to emails stored on hard drives; court instructed plaintiff to narrow his search terms, and any additional searches would occur only by joint agreement or court order; parties to share equally the costs of performing initial keyword search, but defendant to pay full cost of privilege/relevance review

Nature of Case: Employment litigation

Electronic Data Involved: Email and other ESI

Guy Chem. Co., Inc. v. Romaco AG, 243 F.R.D. 310 (N.D. Ind. 2007)

Dec 01 2007

Key Insight: Where non-party used outside computer firm to handle its electronic data and estimated that cost to comply with subpoena would be $7,200, court found that data was “not reasonably accessible because of undue burden or cost” but ordered production in light of good cause shown, with cost of production to be paid by party who issued subpoena

Nature of Case: Breach of contract

Electronic Data Involved: Routine business documents stored electronically

Digene Corp. v. Third Wave Techs. Inc., 2007 WL 5731934 (W.D. Wis. July 27, 2007)

Dec 01 2007

Key Insight: Where plaintiff failed to produce emails alleged to contain too little relevant information to justify production costs, court declined to compel production unless defendant indicated willingness to bear 100% of cost, including privilege review; court indicated that upon defendant?s discovery of ?highly relevant, non-cumulative information,? court may require plaintiff to pay fraction of cost

Nature of Case: Patent infringement and antitrust claims

Electronic Data Involved: Emails

Tag:Cost Shifting