Tag:Cost Shifting

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Samide v. Roman Catholic Diocese of Brooklyn, 773 N.Y.S.2d 116 (N.Y. App. Div. 2004)
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Toledo Fair Hous. Ctr. v. Nationwide Mut. Ins. Co., 703 N.E.2d 340 (Ohio 1996)
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Allstate Ins. Co. v. Hodges, 855 So.2d 636 (Fla. Dist. Ct. App. 2003)
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United States v. Visa USA, Inc., 1999 WL 476437 (S.D.N.Y. Jul. 7, 1999)
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BASF Fina Petrochemicals Ltd. P’ship v. H.B. Zachry Co., 2004 WL 2612835 (Tex. App. Nov. 18, 2004)
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Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568 (N.D. Ill. 2004)
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Vision Point of Sale, Inc. v. Haas, 2004 WL 5326424 (Ill. Cir. Ct. Sept. 27, 2004)
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Hagemeyer N. Am., Inc. v. Gateway Data Sci. Corp., 222 F.R.D. 594 (E.D. Wis. 2004)
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Computer Assoc. Int’l v. Quest Software, Inc., 56 Fed. R. Serv. 3d 401, 2003 WL 21277129 (N.D. Ill. June 3, 2003)
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Williams v. DuPont, 119 F.R.D. 648 (W.D. Ky. 1987)

Samide v. Roman Catholic Diocese of Brooklyn, 773 N.Y.S.2d 116 (N.Y. App. Div. 2004)

Key Insight: Court modified prior order directing defendants to produce contents of hard drives for in camera inspection; individual defendants now directed to produce hard copies of all emails relating to allegations against certain individual, including any deleted emails recovered by a qualified expert appointed by the referee supervising the discovery; only those emails that in fact deal with relevant allegations to be turned over to the plaintiff; plaintiff agreed to bear all costs related to recovery of data from hard drive

Nature of Case: Sex discrimination, negligent supervision and breach of contract

Electronic Data Involved: Email and deleted email on hard drives of individual defendants

Toledo Fair Hous. Ctr. v. Nationwide Mut. Ins. Co., 703 N.E.2d 340 (Ohio 1996)

Key Insight: Requiring insurer to create programs to retrieve and put in usable form information from its databases at its own expense, court stated: “[A] party cannot avoid discovery when its own recordkeeping system makes discovery burdensome. If a party chooses to store information in a manner that tends to conceal rather than reveal, that party bears the burden of putting the information in a format useable by others.” However, court did order that request for computer-generated reports be narrowed.

Nature of Case: Minority homeowners brought civil rights action alleging that insurer engaged in redlining to avoid minority neighborhoods

Electronic Data Involved: Insurer’s databases and computer-generated reports

Allstate Ins. Co. v. Hodges, 855 So.2d 636 (Fla. Dist. Ct. App. 2003)

Key Insight: Trial court properly ordered insurer to answer victim’s interrogatories despite claimed burden; court remarked: “[I]n the three years following the issuance of Boecher, Allstate still has not implemented a computer program or system for keeping track of the information. In fact, Allstate used two of the very same affidavits it used in Boecher to explain that its computer systems did not have the information requested readily accessible. In this day of the computer age, and in light of the Boecher court’s serious emphasis on the need for the very type of information requested, Allstate may want to reconsider adapting its computer system to provide easier access to the requested information.”

Nature of Case: Personal injury

Electronic Data Involved: Information regarding insurer’s relationship with and payments to medical groups where its experts worked as physicians

United States v. Visa USA, Inc., 1999 WL 476437 (S.D.N.Y. Jul. 7, 1999)

Key Insight: Parties agreed to narrow the scope of archived email search, both in terms of the number of employees whose email was to be produced and the number of days per month for which that email was to be produced; defendants to bear cost of production ($130,000) initially, but court reserved decision about who ultimately would bear cost; court denied plaintiff’s request that defendant make its production available on CD-ROM

Nature of Case: Antitrust

Electronic Data Involved: Archived email

BASF Fina Petrochemicals Ltd. P’ship v. H.B. Zachry Co., 2004 WL 2612835 (Tex. App. Nov. 18, 2004)

Key Insight: Court awarded non-party its costs of production, but ruled that non-party was not entitled, under either Tex. R. Civ. P. 205.3 or 176.7, to recover attorneys’ fees incurred in responding to subpoena, noting that non-party obtained legal advice to protect its own interests, not to facilitate compliance with subpoena

Nature of Case: Construction litigation

Electronic Data Involved: Electronic data

Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568 (N.D. Ill. 2004)

Key Insight: Court created its own eight-factor test by adding one more factor to the Zubulake seven-factor test, and determined that cost-shifting was appropriate (responding party 25% and requesting party 75%)

Nature of Case: Sexual harassment

Electronic Data Involved: Email stored on backup tapes

Hagemeyer N. Am., Inc. v. Gateway Data Sci. Corp., 222 F.R.D. 594 (E.D. Wis. 2004)

Key Insight: Adopting Zubulake and McPeek approaches, court ordered defendant to restore a sampling of five backup tapes selected by the plaintiff; parties would thereafter be required to make additional submissions addressing whether the burden or expense of satisfying the entire request was proportionate to the likely benefit

Electronic Data Involved: Email stored on backup tapes

Computer Assoc. Int’l v. Quest Software, Inc., 56 Fed. R. Serv. 3d 401, 2003 WL 21277129 (N.D. Ill. June 3, 2003)

Key Insight: Applying the Rowe balancing test, court denied producing party’s motion to require requesting party to pay costs associated with computerized privilege review estimated to cost $28,000-40,000

Nature of Case: Copyright infringement, misappropriation of trade secrets

Electronic Data Involved: 8 hard drives

Williams v. DuPont, 119 F.R.D. 648 (W.D. Ky. 1987)

Key Insight: Employer entitled to discover, at its own expense, copies of database on computer disk, code books and user manual created by EEOC’s expert from information produced by employer to allow for effective cross-examination of EEOC’s expert; in addition, employer to pay “fair portion of the fees and expenses incurred” in the past by EEOC for the expert’s work in encoding the requested data and formulating the database

Nature of Case: Consolidated Title VII action brought by individual and EEOC

Electronic Data Involved: Database created by EEOC’s expert from information produced by employer

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