eDiscovery Etiquette: Who Should Pick Up the Check?

eDiscovery Etiquette: Who Should Pick Up the Check?

Electronic Discovery requests can pose substantial financial burdens for the parties to a lawsuit.  According to the New York County Supreme Court, these costs are the responsibility of the party who is required to produce the e-discovery.  However, there are a few exceptions to this general rule, including discovery requests that present an undue burden to the producing party and situations in which the requesting party has already agreed to pay the costs of production.

In the case of Silverman v. Shaoul, 913 N.Y.S.2d 870 (Sup.Ct. 2010), the defendants sought to have plaintiffs pay the costs of production of electronic data incurred in complying with the plaintiffs’ requests for disclosure. Defendants based their argument on two main points:

  1. The plaintiffs consented to pay the costs of production, by both failing to respond to a letter which estimated the cost, and subsequent e-mail exchanges; and
  2. The process of producing the data required by the plaintiffs’ requests constituted an undue burden to the defendants because the data was not readily available.

The Court found that the defendants’ assumption that the plaintiffs would pay the costs associated with the production of the data requested was misplaced.  Defendants argued that they had undertaken to produce the data requested with the understanding that the plaintiffs would pay for it.  However, this notion was based only upon the plaintiffs’ inaction with regard to a letter estimating the cost of production and following e-mails.  The Court found that the plaintiffs had no obligation to respond to the letter estimating the costs of discovery and that the failure to respond did not constitute consent to pay.  Furthermore, the Court noted that the plaintiffs’ silence and later e-mails were “neither deceptive nor beguiling”

With respect to the defendants’ claims that the data sought by the plaintiffs constituted an undue burden upon the defendants, the Court held that the plaintiffs’ requests did not rise to a level that would require the costs of production to be shifted to the plaintiffs.  The cases cited by the defendants in support of their claims all involved the production of data that was not readily available to the producing party.  In order to prove that data is not readily available, a party must show that the production of that data would create an undue burden.

In this case, the data was “neither archived nor deleted; it was simply stored in a number of places” and commingled with the defendants’ other business records.  While the retrieval of archived and/or deleted data are not the only instances in which an undue burden can be shown, the Court found that a producing party’s need to process data is not such a burden, “but merely the normal burden of litigation”.  Thus, the Court found that production of the data did not constitute an undue burden, and the producing party was required to pay the costs associated with fulfillment of the discovery demands.


Corinne B. Maloney, a Seton Hall University School of Law student (Class of 2013), focuses her studies in the areas of family law and estate/probate law.  During her time at Seton Hall Law School, she has done pro bono work with the Courtroom Advocates Project and the Family Law Clinic, representing clients in Court in a range of family law cases.  Corinne will be the Law Clerk for a Judge of the Superior Court, Family Division, Bergen County for the 2013-2014 term.  Prior to law school, Corinne graduated summa cum laude from Ramapo College of New Jersey, where she majored in Political Science with a minor in Public Policy.  Since 2004, Corinne has been employed by the law firm of Fraioli & Moore, Esqs., assisting the attorneys in primarily estate planning and litigation matters. 


Comments (1):

  1. Knowing that courts are unlikely to grant cost shifting in cases like this, perhaps companies should preemptively prepare for litigation. Perhaps the back-ups could organize the data in a more cohesive and easily searchable organizational format. Begs the question, to what degree do courts require potential litigation costs to affect normal course of business?

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