How "Buyer’s Remorse” Can Affect Change in an ESI Agreement

Be Careful What You Bargain For

Author:Michael Mondelli III

Case Citation:Bailey v. Brookdale Univ. Hosp. Med. Ctr., No. CV162195 (ADS) (AKT), 2017 WL 2616957, (E.D.N.Y. June 16, 2017).

Employee/Personnel/Employer Implicated:Plaintiff’s Counsel

eLesson Learned:Attorneys should be sure to scrupulously inquire into what sort of information their client is able to produce, both financially and technologically.

Tweet this:Make sure that you and your counsel work together to develop a discovery plan BEFORE you negotiate with your adversary.

The Plaintiff, Lloyd Bailey, brought an action against Brookdale University Medical Center (“Brookdale”) and Carlos Ortiz (“Ortiz”) (collectively, the “Defendants”) seeking damages based upon Defendants’ violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act (“ADEA”), the New York State Human Rights Law (“NYSHRL”), and the New York City Human Rights Law (“NYCHRL”). After the court conducted an Initial Conference with the Plaintiff and Defendants, the parties submitted a fully executed ESI Agreement (the “Agreement”) to the court, which was confirmed by the court. After the Agreement was confirmed, the parties took part in the Court’s required Discovery Status Conference.

Despite being freely negotiated over a reasonable amount of time, at the status conference, Plaintiff’s counsel sought to undo various provisions of the Agreement. Even though the court found the Plaintiff’s misgivings retroactive to the Agreement unpersuasive, the court directed plaintiff’s counsel to review the Agreement with an outside vendor, which was provided by the Defendants, to assess costs of discovery. After the assessment from the outside vendor, the Plaintiff filed an Affidavit of Economic Hardship stating that the cost of $2,000 to $3,000 for his emails would create great hardship on him and his family with the Plaintiff only earning $90,000 a year as the sole provider. The Defendants asserted that the Plaintiff could meet this reasonable financial load and that the Plaintiff bore the burden of paying for discovery that his claims necessitated.

The court recognized that the general rule was that the cost of production falls on the responding party. However, the court also noted that, under certain circumstances, the court can consider cost-shifting of production expenses to the requesting party. Nevertheless, the court warned that cost-shifting should only occur when electronic discovery imposes an undue burden on the responding party. The court believed that the Agreement was thoroughly negotiated and stipulated, but there was an undue burden on the Plaintiff due to Plaintiff’s counsel.

While the court confirmed the Agreement, after further review it found that the Agreement seemed to be designed for use in corporate settings as opposed to the single plaintiff actions at issue here. The court could only conclude that Plaintiff’s counsel did not engage in a meaningful negotiation regarding discovery. Yet, since the Plaintiff chose his counsel, he cannot avoid the actions or omissions of his attorney. Therefore, the court found no grounds to invalidate the Agreement. However, the court did find partial cost-shifting to be appropriate due to the actions of Plaintiff’s counsel and the insistence of the Defendants that the Agreement be followed to the letter. As such, the court order that the Defendants would bear 40% of the discover costs, with the remaining 60% to be borne by Plaintiff’s counsel.

Michael Mondelli III received a B.A. in Political Science and Philosophy from Drew University in 2015. He will receive his J.D. from Seton Hall University School of Law in 2018. Present, Michael interns for the U.S. Trustee’s Office. After Graduation, Michael will clerk for a civil judge in the Superior Court of New Jersey.

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