Its no secret that disputes arise when time comes for parties to pay discovery costs. With electronic discovery becoming more and more prevalent, this has allowed parties to cut significant costs associated with photocopying and traditional paper discovery. However, what happens when paper documents are provided to a party, upon the party’s request, when the documents could have been provided in a more affordable, electronic form. The U.S. District Court for the District of New Jersey dealt with this issue in a 2002 case.

In re Bristol-Myers Squibb Securities dealt with litigation regarding an alleged violation of the Securities Exchange Act. The plaintiff was apparently unaware that the requested documents were available in electronic form and agreed to pay 10 cents per page for copying costs. However, when the defendant produced over 3,000,000 (!) pages of documents, the plaintiff balked at paying, as they had apparently only expected 500,000 pages. Only at this time, after receiving the bill, did the plaintiff inquire as to whether or not the material existed in electronic form, to which the defendant said that it did. The plaintiff therefore refused to pay the costs and the discovery dispute arose.

The defendant argues that the plaintiff agreed unconditionally to pay 10 cents per page and did not so much as ask about the availability of the documents in electronic form until after they received the bill. The defendant stated, and the court agreed, that they did not produce any excessive documents and instead produced only what was requested. However, despite the fact that Court generally raised the issue of electronic information prior to the Plaintiff requesting the documents in paper form, the Court still found that the defendant was required to disclose the availability of the information in electronic form. The Court cited the Federal Rules of Civil Procedure 26(a)(1)(B) advisory committee notes, stating that parties are required to disclose “computerized data and other electronically-recorded information.” Since the defendant did not do such, the Court found that the plaintiff would not be responsible for the costs associated with producing these documents on paper. The defendant was forced to eat the costs of photocopying and producing these documents to the plaintiff.

Parties must always be aware of the rules associated with electronic discovery. Discovery is an expensive process and lack of knowledge pertaining to a simple rule can turn out to be a costly mistake, as it was here for the defendant. Always alert your adversary of the availability of documents in electronic form.

Austin is a 3^rd year law student at Seton Hall Law, scheduled to graduate in May, 2012. He received his B.A. from University of Maryland, College Park. He hopes to pursue a law career involving real estate, estate management, and civil litigation.