eDiscovery

Changing Horses Midstream? Court Says “Yes” to plaintiff Switching From Manual Document Review to Predictive Coding

The court entered its usual case management order setting forth a timeline of how this case was going to proceed. One of the first phases of litigation is the discovery phase. This means that both sides get to ask each other for documents and information regarding the issue in the case. The rules are fairly straightforward in this phase and each side will likely be obligated to provide much of what the opposing side asks for. In the instant case, after doing some manual searching, the plaintiff, Bridgestone, requested to use predictive coding to help sort through over two million documents. Predictive coding, to put it simply, is akin to a smarter keyword search. Keywords are put in and the program searches for those words as well as for other relevant words that it has “learned” to associate with the keywords in order to determine if a document is relevant or not. The defendant, International Business Machines Corporation, objected to Bridgestone’s use of predictive coding. The objection being that it would be an unwarranted change in the case management order. However, the court ruled that predictive coding could be used because under the rules discovery should be efficient and as cost-effective as possible. Thus, predictive coding, which is a smart search, was allowed in this case in order to expedite the discovery phase and save money on manual or other document review techniques. Moral of the story: Predictive coding may be implemented as an efficient discovery technique even if a case management order is already in place. Jessie is a third year student at Seton Hall University School of Law (Class of 2015). She graduated from Rutgers University, New Brunswick, in 2012 with a B.A. in Philosophy and Political Science.  Want to read more articles like this?  Sign up for our post notification newsletter, here.

When Should A Company Take What Is Offered At the Meet and Confer and Not Take Any Risks?

A party demands the sun, moon and stars in a document request or interrogatory, refusing to give even a little bit. The meet and confer required by a court in advance of a motion is perfunctory at best, with no compromise whatsoever. But when the parties appear before the court, the recalcitrant party possesses newfound flexibility and a willingness to compromise. - Hon. Paul S. Grewal This case is a demonstration of when a company should be flexible during the meet and confer because a good offer does not make its way back around and it is risky to not accept it. The plaintiff, in this case, issues a subpoena on a third party, seeking the production of a complete forensic image of two laptops utilized by the defendant. The defendant, a former employee of the plaintiff, has since been working with a third party company, a competitor and nonparty to this action. During the meet and confer, the third party company offered “to have an independent vendor review a full forensic image of the first laptop to search for pertinent information, including a review of any deleted files.”  The plaintiff refused. The third party company issued two laptops to the defendant. The first was segregated upon hearing about this case. At which point the third party produced to the plaintiff “forensic information about the contents of the first laptop in the form of file listing reports, which disclose extensive metadata of the files contained on the laptop, USB reports, and web browsing history reports” and a second laptop was issued. Both laptops were utilized by the defendant in the course of his work and contained privileged communications. The third party company argued that the demanded forensic images of the two laptops was unwarranted and risked disclosure of protected information that was not the subject of discovery in this case. The law states that a court may quash a subpoena “in the event the subpoena requires disclosure of a trade secret or other confidential research, development, or commercial information.” Thus, the judge in this case ruled to quash the subpoena. The court reasoned that the second laptop, which was issued after suit was filed, was “not discoverable.” Additionally, as to the first laptop, the court determined that while there was “no doubt” that discoverable information existed on the two laptops, “by demanding nothing less than a complete forensic image of not just one but two laptops belonging to a direct competitor, the plaintiff demands too much.” The court explained that the requested production would “disclose privileged communications . . . as well as irrelevant trade secrets from a nonparty-competitor” and that the subpoena thus sought “discovery of protected matter, something plainly not permitted under Rule 45, rendering the subpoena overbroad and imposing an undue burden.” It is important to note that because this was competitor-competitor ligation, there was a lot more on the line as to confidential information. The judge also declined to allow the plaintiff to accept the non-party’s prior offer from the meet and confer to allow an independent vendor to review the first laptop for pertinent information. The court stated “But to allow Boston Scientific now to seek shelter from a fallback position that Nevro previously tendered in good faith would make a mockery of both parties’ obligation to meet and confer in good faith from the start. The time to tap flexibility and creativity is during meet and confer, not after.” 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.

Prophylactics Do Not Protect Pharmaceutical Companies From Data and Document Discovery Laws!

In this case, the Plaintiff Nicole Baker sues Bayer Healthcare Pharmaceutical Inc., complaining that the Bayer product Mirena was not adequately accompanied by warnings of its side effects. She asks Bayer to produce databases that contains sales calls made by the marketing and sales department to physician’s offices. The sales calls notes also contain conversations between sales representatives and healthcare providers. Bayer argues that only the sales calls notes concerning Baker’s treating physician are relevant. Bayer also argues that producing all the sales calls notes are unduly burdensome and excessive in light of the needs of the case. Ultimately, the court finds in favor of the Plaintiff, and finds that the databases containing all sales calls must be produced due to their relevance to the current case. Federal Rule of Civil Procedure 26(b)(1) permits “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” The information sought “need not be admissible at the trial” so long as it “appears reasonably calculated to lead to the discovery of admissible evidence.” The crux of the Plaintiff’s argument is that all the sales call notes, not just limited to those related to her physician, are relevant to her case because they would ascertain whether the pharmaceutical company is overpromoting the product Mirena. Overproduction would mean that there could be dilution or nullification of any warnings, thereby rendering the warnings inadequate. The Plaintiff argues that the volume and substance of the sales calls notes can establish whether there was a vigorous, aggressive sales campaign to the medical profession, leading to failure to heed written warnings. While this argument appears to be attenuated, it does fall under the standard of being reasonably calculated to lead to the discovery of admissible evidence. The takeaway message is that the court thought although it was a burden to the Defendant, all of the sales calls notes are relevant to establishing if Bayer’s Mirena campaign was so pervasive that any doctor, including the Plaintiff’s, would fail to pay attention to warnings about the product’s side effects. Rebecca Hsu, a Seton Hall University School of Law student (Class of 2015), focuses her studies in the area of Patent Law, with a concentration in Intellectual Property. She is also certified in Healthcare Compliance, and has worked in Compliance at Otsuka America Pharmaceuticals, Inc.  Prior to law school, she graduated cum laude from UCLA and completed graduate work in biomedical science. She has co-authored two medical science research articles, as well as completed fellowships through UCLA Medicine and the Medical College of Wisconsin. In addition to awards for her academic achievements, Rebecca has been honored by awards for her community service with disadvantaged communities. In her spare time, Rebecca regularly practices outdoor rock climbing, and can be found camping in the Adirondacks. Want to read more articles like this?  Sign up for our post notification newsletter, here

How Can One Secure An Order Protecting One From Producing Certain ESI?

This matter came before the court upon Plaintiff Black & Veatch’s Motion for Protective Order and Request for Discovery Conference. B&V entered into a series of agreements wit American Electric Power Services (“AEP”) and other companies (collectively, the “Owners”) to engineer, procure material, and construct wet flue gas desulfurization systems (also known as JBRs). The Owners claimed the JBRs were defective. B&V paid several millions of dollars to repair and replace the JBRs. To recover some of the incurred costs, B&V filed a claim with its professional liability carriers, filed suit against a subcontractor, and filed a breach of contract and declaratory judgment action against various insurance providers relating to the relevant insurance policies. B&V alleged it maintained Electronically Stored Information (“ESI”) relating to the JBRs on Documentum—an electronic document management program, custodian hard drives, and Accounting and Field Management System. B&V produced 448.7 gigabytes of data to the Defendant. However, B&V withheld additional relevant ESI, arguing that the Defendants’ proposed search terms were too board and producing discovery pursuant to those search terms would be unreasonable and excessively expensive. B&V was unable to estimate the cost of producing the ESI. B&V sought a protection from producing this additional relevant information. In the alternative, B&V proposed to shift some of the cost in producing the ESI to the Defendants. Fed. R. Civ. P. 26(c) states, “a court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. The movant bears the burden of establishing good cause by making a particular and specific demonstration of fact. A mere conclusory statement that ESI production would cost a party tens or hundreds of thousands of dollars does satisfy a movants burden to make a specific demonstration of fact in support of a protective order. The court held that B&V’s undue burden and expensive argument to be unsupported and conclusory. B&V failed to provide any hour or cost estimate. Thus, the court denied B&V’s Motion for Protective Order.  Additionally, the court refused to grant the protective order because the Defendants’ search terms were overbroad, noting that Fed. R. Civ. P. 26(c) only allows protective orders when the movant proves the order is necessary to protect the party from annoyance, embarrassment, oppression, or undue burden. Over breadth is not an enumerated category. The court also denied B&V cost shifting proposal. Fed. R. Civ. P. 26(b)(2)(C)(iii) allows the court to impose cost shifting measures when the party from whom discovery is sought demonstrates that the information is reasonably accessible because of undue burden or cost. B&V failed to show that the ESI production was inaccessible because of undue burden or cost because B&V’s only mention of cost to produce ESI was conclusory and unsubstantiated. Furthermore, the court stated that the parties were free to enter into a clawback agreement, which would compel the parties to return inadvertently produced privileged documents. B&V also sought protection from producing ESI from the custodian hard drive, arguing that that data produced pursuant to Defendants’ search terms would be unrelated or duplicative. Moreover, B&V argued that a Defendant’s proposed list of custodians was overly broad. Defendant argues that the proposed list is reasonable on its face given that the case involves a $70 million coverage dispute. The court again denied B&V’s Motion for Protective Order because B&V failed to substantiate its claim that the production of ESI from the custodian hard drives pursuant to proposed search terms will yield unrelated or duplicative data. B&V also failed to substantiate its claim that Defendant’s proposed list of custodian hard drives was unduly burdensome because it was without any information regarding the custodians’ job duties, their involvement with the facts at issue, or whether they had potentially relevant information on their hard drives Finally, B&V sought protection from producing electronic interim accounting reports regarding the cost of the JBR projects, arguing that such production would be wasteful, expensive, and burdensome. B&V stated that only the final accounting costs were necessary to determining damages, and a final cost accounting report was previously produced to the Defendants. The electronic interim accounting reports requested by the Defendants are adjusted monthly, and do not represent final costs needed to determine damages. Defendants argued that the report produced did not include the final cost documents, and the lack of information prevents them from properly assessing damages. The court again denied B&V’s Motion for Protective Order because B&V did not substantiate how producing the electronic interim accounting reports would be unduly burdensome or expensive. B&V’s assertion that monthly-adjusted accounting reports will not provide final cost information was conclusory. Aaron Cohen, a Seton Hall University School of Law student (Class of 2015), focused his studies in the area of Family Law. He participated in the Seton Hall Center for Social Justice’s Family Law Clinic. After graduation, he will clerk for a judge in the Superior Court of New Jersey, Family Division. Prior to law school, he was a 2011 cum laude graduate of The George Washington University Columbian College of Arts and Sciences, where he earned a B.A. in Psychology. Want to read more articles like this?  Sign up for our post notification newsletter, here.

All That Glitters is NOT Gold

Plaintiffs asked Defendants for documents to be scanned and produced as searchable PDFs.  Defendants did exactly that.  So, there’s no problem, right?  Wrong.  Plaintiffs felt a little slighted, to say the least, after receiving the unorganized files.  If only they asked for hardcopies instead. The court found that the term “documents” as defined in FRCP 34(b)(2)(E)(i) does not include ESI, so the rule’s requirement that documents be produced either in the usual course of business or labeled to correspond to categories in the request does not apply to ESI.  Once the parties agreed to transfer hard copy documents in an electronic form, that means of production is governed by the rules for ESI, and Plaintiffs in this case met their obligations under this rule without organizing or labeling the disclosed ESI. Plaintiffs wanted Defendants to identify the particular discovery request to which each document responds, but to be fair, Defendants already went through the effort of scanning the approximately 20,000 documents.  Plaintiffs tried to argue that Defendants’ storage of the documents in hard copy meant that scanning the documents in order to produce them for discovery should not abdicate Defendants’ responsibility to produce them as organized in the ordinary course of business.  It may seem surprising this argument was unsuccessful, but is it really? The court found that the parties stipulated out of FRCP 34(b)(2)(E)’s default provisions when the Plaintiffs’ requested items in scanned electronic form, and that Plaintiffs technically received exactly what they asked for.  Another hang-up for the Plaintiffs was FRCP 34(b)(2)(E)(iii) not requireing a party to produce the same electronically stored information in more than one form, which includes hardcopies. Beyond the facts and the ruling, this case should stand for the proposition that blindly requesting ESI is ill-advised.  Parties should know enough to know exactly what they need from a discovery request, and how to make that request as accurately and effectively as possible.  This decision may not exist if Plaintiffs simply asked for the documents to be scanned and produced in the usual course of business.  While Defendants may not have eagerly acceded to such a request, the request’s denial would have raised some red flags for Plaintiffs and forecasted what would be their eventual dissatisfaction if they merely asked for the documents to be scanned as searchable PDFs. Samuel is in the Seton Hall University School of Law Class of 2015 pursuing the Intellectual Property concentration. He received his master’s from the Rutgers Graduate School of Biomedical Sciences and became a registered patent agent prior to entering law school. Want to read more articles like this?  Sign up for our post notification newsletter, here.

What Happens When Video Evidence Is Changed, But Not Deleted?

In May 2014, Hon. Janet Bond Arterton, U.S.D.J. for the District of Connecticut ruled that sanctions were not appropriate in a case involving the conversion of a security video’s native format.  Plaintiff Robert Crawford brought a motion for spoliation sanctions—including an adverse-inference instruction and monetary sanctions—against the Defendant City of New London for an alleged failure to preserve a hard drive containing video of Crawford’s arrest.  Plaintiff, whose underlying claim involves excessive force issues, suggested that the original format of a security video may have been capable of being enhanced, and as such, Defendants had a duty to preserve that original version, and turn it over for discovery.  Judge Arterton disagreed. In examining whether sanctions were appropriate, the court first set about defining the parameters of spoliation. The court noted “[s]poliation is the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” Crawford v. City of New London, 2014 WL 2168430, *2 (D. Conn. May 23, 2014) (quoting West v. Goodyear Tire & Rubber, Co., 167 F.3d 776, 779 (2d Cir. 1999)).  Later, the court analyzed the adverse-inference charge, and articulated “[a] party seeking an adverse inference instruction based on the destruction of evidence must establish (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.” Id. (quoting Chin v. Port. Auth. of N.Y. & N.J., 685 F.3d 135, 162 (2d Cir. 2012)). Here, the court noted that Defendants’ duty to preserve stemmed from a hold letter received pursuant to the Freedom of Information Act on June 24—nearly five months after the incident took place, and more than four months after New London’s retention policy allows for transferring of data to portable storage.  As such, while the Defendants certainly had a duty to preserve, there was no specific need for multiple copies of duplicative information.  New London hadn’t breached the preservation duty. But what about “Significant Alteration?”  Spoliation isn’t just about destruction.  Plaintiffs argued that in converting the video evidence from the format present on the hard drive to the portable storage versions on DVD, Defendants sacrificed the integrity of metadata, or of the files themselves such that they could no longer be enhanced for use in trial presentation.  This novel argument suggested that were enhanced versions of the video available, perhaps the jury could see that Crawford’s arrest on February 4, 2010, was enacted using excessive force. The court was not persuaded by this argument.  Testimony from the City of New London’s Chief Information Officer indicated that the conversion to DVD was lossless, in that the new format preserved the video in every material way.  Absent proof to the alternative, the moving party was unable to demonstrate “that the destroyed [or significantly altered] evidence was relevant . . . ” under the standards set forth in Federal Rule of Evidence 401. Defendants were prepared for litigation, and they reasonably preserved all necessary data responsive to discovery request.  Defendants’ retention policy for the original hard drive housing security footage is acceptable, and preserving the data on portable media after formatting the drive is an added precaution going well-beyond the standard of care.  Crawford is fortunate that Judge Arterton didn’t force Plaintiffs to cover the costs of responding to the motion—if this author was on the bench, he might have. Kevin received a B.S. in Political Science from the University of Scranton (2009), and will receive his J.D. from Seton Hall University School of Law in 2015.  Prior to joining the Seton Hall community, Kevin worked as an eDiscovery professional at two large “white-shoe” law firms in Manhattan. Want to read more articles like this?  Sign up for our post notification newsletter, here.

When Is a Request For Discovery Overbroad and of Speculative Relevance?

Overbroad and unwieldy discovery requests will not be tolerated and will be denied by the courts.  A party may not indiscriminately pursue wholesale production of discovery materials, especially when the party fails to provide any justification for the expansive discovery request.  Instead of allowing such overbroad discovery, the courts will limit the request to certain materials or agreed upon search terms. In Capital Ventures Int’l v. J.P. Morgan Mortgage Acquisition Corp., Capital Ventures International (“Capital”), the plaintiff, moved to compel J.P. Morgan Mortgage Acquisition Corp. (“J.P. Morgan”), the defendant, to provide further responses to its requests for production.  Capital sought the testimonial materials from all other investigations and litigations regarding JP Morgan’s residential mortgage-backed securities (“RMBS”) practices, all materials already produced in other RMBS actions or investigations, and several other discovery related requests.  In response, JP Morgan provided less burdensome alternatives to Capital’s requests. The court found that Capital’s indiscriminate requests for the wholesale production of all testimonial materials and already produced materials to be overbroad and not reasonably calculated to lead to relevant information.  The testimonial materials encompassed more than 150 million pages of documents and 153 deposition transcripts, while the materials produced in other RMBS actions and investigations included a massive document production of tens of millions of documents.  Moreover, the court found that Capital did not show a sufficient similarity between this case and all the other cases and failed to justify the expansive discovery.  The court accepted JP Morgan’s offer to produce approximately 50 deposition transcripts and to run agreed-upon search terms to sufficiently capture materials relevant to the issues in this case.  Beyond that, the court denied Capital’s remaining requests for testimonial materials and documents produced. The requesting party should avoid submitting overbroad requests for discovery that are not reasonably calculated to produce documents relevant to the issues in the case.  Several alternative strategies that can be learned from Capital Ventures International are:  (1) utilize programs that run search terms to capture relevant materials; (2) limit requests to certain relevant materials; and (3) provide sufficient justification for discovery requests that are potentially overbroad.           Gary Discovery received a B.S. in Business Administration, with a concentration in Finance from the Bartley School of Business at Villanova University.  He will receive his J.D. from Seton Hall University School of Law in 2015.  After graduation, Gary will clerk for a presiding civil judge in the Superior Court of New Jersey. Want to read more articles like this?  Sign up for our post notification newsletter, here.

What Kind of Paper Trail Is Inside Your Computer? Deleting It Is Not As Simple As Pressing Delete

Have you ever wondered what happens to electronic files when you press the delete button? Or what happens when you put them in the “e-trash?”  You may be surprised to find out that getting rid of electronic material is not as easy as it may seem.  And in many cases, actually deleting or tampering with electronic files or data can cause a great big legal headache. The case of First Sr. Fin. Group LLC v. Watchdog explores and explains the issues that can arise when a person tries to permanently delete or tamper with electronic material that should have been protected and preserved for trial. Here, Defendant was asked to preserve the computer she used to make allegedly disparaging and defamatory remarks under her pseudonym, “watchdog.”  The problem is that the computer was some how wiped clean of all electronic data after she was asked to it turn over to the experts. Now, let’s back track for a moment.  Why is it such a big deal that data was deleted?  Don’t people delete files all the time?  The key to this problem is that electronic files and data can’t just be deleted unless very deliberate actions are taken. When a file is technically “deleted,” it is simply hidden in the background of the computer and marked as, what we will call, disposable data.  Then, when the computer runs out of room to store more data, the disposable data is overwritten. Now, this doesn’t mean there is absolutely no way to wipe the data from a computer. As the saying goes, if there is a will, there is a way! (Even is the way is frowned upon and could present major legal repercussions.)  In this case, someone used two programs called Erase Pro and CCleaner to effectively wipe MOST of the data from the computer involved in the case. In legal speak, this is called spoliation of evidence, and if proven, it can mean serious repercussions.  Proving a person intentionally tampered with or destroyed evidence requires proof that a person:  (1) had control over the evidence; (2) the evidence had relevance to the claim; (3) actually suppressed or withheld the evidence; and (4) that person had a duty to preserve the evidence. In this case, the judge held Defendant was liable for the spoliation of the evidence because Defendant met all of the above factors.  However, factors 2 and 3 are particularly relevant to eDiscovery. In regards to the second element (whether the computer data was relevant to the claim), the judge turned to the data fragments recovered by the expert.  When a computer is wiped clean with Erase Pro and CCleaner, it still leaves behind fragments of data, which are like pieces of a ripped up letter.  In this case, the Judge determined that the data fragments provided enough information to show that the computer data was relevant to the case. As such, the second element was satisfied. In regards to element 3 (whether the data was actually suppressed or withheld), the Judge’s main inquiry revolved around whether the use of CCleaner and Erase Pro is considered intentional.  As you might imagine, it was pretty obvious that the use of two separate types of software with the distinct purpose to clear the computer of data is an intentional act.  As such, the third element was satisfied. The Defendant got lucky with a minor sanction of a fine, paying for the computer expert, and paying the other parties attorney’s fees related to the investigation of the computer.  However, this was nothing compared to those available for spoliation charges.  In more serious cases, the judge could hold that an adverse inference be drawn from the missing evidence, or the party could pay all fees related to the case.  In the most extreme cases, the Judge could choose to dismiss the case or find the case in favor of opposing party. Overall, when it comes to electronic data there is one thing to remember.  Electronic data is extremely difficult to get rid of, and actually getting rid of it can mean serious legal consequences. Victoria O’Connor Blazeski (formerly Victoria L. O’Connor) received her B.S. form Stevens Institute of Technology, and she will receive her J.D. from Seton Hall University School of Law in 2015.  Prior to law school, she worked as an account manager in the Corporate Tax Provision department of Thomson Reuters, Tax & Accounting.  Victoria is a former D3 college basketball player, and she has an interest in tax law and civil litigation.  After graduating, she will clerk for the Hon. Joseph M. Andresini, J.T.C. in the Tax Courts of New Jersey.   Want to read more articles like this?  Sign up for our post notification newsletter, here.

Excessive Force, Missing Video Evidence: Were the Cops Trying to Hide Something?

The Philadelphia Police Commissioner and two police officers were accused of spoliation of evidence in an excessive force case. “Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence.” Kinsler v. City of Philadelphia, No. CIV.A. 13-6412, 2014 WL 3964925, at *1 (E.D. Pa. Aug. 11, 2014) (internal citations omitted). In this case, there was an incident that led Jeffrey Kinsler to file a lawsuit against the City of Philadelphia for use of excessive force. Subsequently, a witness submitted a 15-to-30-second-long video to the police department of the events that occurred prior to the arrival of the police officers on scene that day. The police department lost the video. Kinsler argues spoliation and asks for a specific jury instruction stating such, as well as sanctions. The court found however, that there was no spoliation. It determined that the video was not relevant to the case because it only showed events that occurred before the officers arrived on scene. Further, a video was in existence that showed the incident at the time the officers were involved. Also, Kinsler never claimed that the accused officers were ever in possession of the lost video. Therefore, there was no spoliation and plaintiff’s motion for sanctions was denied. Moral of the story: If evidence is at all potentially relevant in pending or foreseeable litigation, preserve it, or risk sanctions. Jessie is a third year student at Seton Hall University School of Law (Class of 2015). She graduated from Rutgers University, New Brunswick in 2012 with a B.A. in Philosophy and Political Science.   Want to read more articles like this?  Sign up for our post notification newsletter, here.

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.

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