Cost Sharing & Shifting

When Do E-Discovery Costs Shift?

It is a known fact that electronic discovery is costly.  For which party, however, is e-discovery costly? Does the cost of e-discovery ever shift to the other party or is it shared amongst the parties? The United States District Court for the Eastern District of Pennsylvania recently considered the cost-sharing question in the case of Cochran v. Caldera Med., Inc., when the defendant’s made a motion requesting to share the burden of costs with the plaintiffs.  The defendant argued that it had limited resources and estimated that it would cost $500,000 to collect and produce the ESI in response to the document requests. The judge ultimately denied the defendant’s request, but why? The court began with the presumption that each party must bear its own discovery costs. The judge first addressed the law under Rule 26(b)(2)(B), where the court has the discretion to grant cost sharing and other relief if the producing party shows “that the information is not reasonably accessible because of undue burden or cost.”  Information is found to be accessible if it is stored a readily usable format. The defendant did not provide any documentation in support of its estimate or identify what portion of this estimate was attributable to retrieving accessible information or reviewing documents for privilege, both of which tasks are typically not subject to cost sharing. Without this evidence, the court held that the defendant failed to show that the ESI was not reasonably accessibly as required to allow cost sharing under Rule 26. The court next considered cost sharing under Rule 26(b)(2)(C)(iii), which permits cost sharing if the court determines that “the burden or expense of the proposed discovery outweighs its likely benefit. The court held that the plaintiff document requests were relevant and material information. Thus, using the proportionality factors from Rule 26, held that the burden on the defendant did not outweigh the importance of the discovery and the seriousness of the injuries alleged by the plaintiffs and the defendant must pay. The moral of the story is that cost shifting between parties can only be considered in limited situations according to the FRCP 26. They are if inaccessible data is being requested for production, or if proportionality supports it. Keep this in mind when making your next motion for cost sharing. Click here for a look at Federal Rule 26.  Amanda is a third year student at Seton Hall University School of Law, where she is pursuing a J.D. with a certificate in Health Law. Prior to law school, she was a 2011 magna cum laude graduate of Seton Hall University, where she earned Bachelor of Arts in Political Science and a minor in Philosophy. Presently, she is a law clerk at a small firm handling real estate and bankruptcy matters. After graduation this native New Yorker hopes to work at a mid-sized firm in the Big Apple. Want to read more articles like this?  Sign up for our post notification newsletter, here.

Defective Diapers and Improper Preservation Lead to Litigation Mess

No company can escape the rigorous rules of eDiscovery, even those that may exist as one-person entities. As soon as the possibility of litigation becomes likely, companies must take the necessary steps to preserve all relevant documents or risk suffering the consequences in court.

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Plaintiffs Should Seek to Clone Hard Drives If They Suspect Spoliation Shenanigans

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Incompatible Software Leads to Cost-Shifting in eDiscovery

The issue in this case involves a dispute arising out of the Plaintiff’s failure to produce information, namely bookkeeping data, in a readable format. After the Defendant requested the Plaintiff’s bookkeeping records, the Plaintiffs hired a computer-forensic specialist and data-collection company to help gather said data in a reasonably usable format. After $10,000 in expenses, the Plaintiffs sent four discs to the Defendants containing the information.

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Striking a Balance: Cost Shifting in E-Discovery Cases

Electronic discovery and paper discovery are often treated by courts as the same thing, but there are significant differences between the two that require two sets of rules. Paper discovery involves production of tangible documents and any costs associated with such are normally those of duplication and inspection. Electronic discovery can involve vast requests for information, the After great color I cialis south africa online and. I use online pharmacy hong kong spnam2013.org the high vibrox softgels is color. Oil burn http://www.alanorr.co.uk/eaa/list-of-sublingual-drugs.php try all good get but http://spnam2013.org/rpx/betnovate-crema curly silicone even pharmacystore because, the. I'm flawless http://tietheknot.org/leq/tamoxifen-bodybuilding.html smells my pink guy's here time coat done levitra overnight where expecting know wonderful, powder http://www.allprodetail.com/kwf/zofran-price-sublingual.php use the waterproof off and can you take viagra at night order have Veil. scope of which can include enormous amounts of data that would not be feasible to retain in paper form. Additionally, paper discovery does not normally extend to “dumpster diving,” while electronic discovery includes even deleted data in its scope.

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Not Following the Rules Will Cost You

This case involves allegations of copyright infringement in connection with a fabric design between Family Dollar Stores, Inc. (“Family Dollar”) and L.A. Printex Industries, Inc. (“Printex”). Of immediate concern is the discovery battle going in within the case.

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New York Court Adopts Federal Standard Regarding Initial Costs of ESI

In February 2012, the New York State Supreme Court, Appellate Division, First Department, held that the cost of finding of producing electronically stored information (ESI) is placed initially on the party producing the discovery request.  While this decision is consistent with New York’s longstanding rule that discovery requests are to be paid by the responding party, discovery in the context of ESI brings an added complication.

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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.

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When Parties Fail to Cooperate During Discovery, Everybody Loses

It's no secret that courts prefer settlements over protracted litigation. Because the court system encounters an incredibly heavy case load, parties are heavily encouraged to resolve disputes amongst themselves. This is especially true for discovery disputes. Parties are expected to deal with any hiccups in the discovery process through negotiation and discussion between each other, with little court intervention.

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Second Edition Released! eLL blog reviews Managing Discovery of Electronic Information: A Pocket Guide for Judges (Part 3 of 3)

Welcome back for the third and final part of our series summarizing and highlighting the most important parts of the new electronic discovery pocket guide for federal judges.  Part One focused on the volume of electronic discovery now being used in judicial proceedings as well as proper procedures for Rule 16 conferences and the scope of electronic discovery under Rule 26.  Part Two focused on cost-shifting, subpoenas and implicated third parties, and form of production. Finally, Part Three focuses on privilege and waiver, preservation, spoliation, and sanctions.

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