e-Lessons Learned

Pay close attention to the rules! Failure to understand the purpose of the rules, as well as failure to comply with motion timelines, could cost your client the opportunity to be relieved of undue discovery costs. This is what happened to the defendant in Cason-Merenda v. Detroit Medical Center.

In Cason-Merenda v. Detroit Medical Center, defendant filed a Motion for Protective Order in an attempt to require the plaintiff to pay 50% of its third-party vendor electronic discovery costs. The defendant relied on Fed.R.Civ.P. 26(b)(2)(B), which states that “[o]n motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost.” After the producing party shows that the information is not reasonably accessible, a court then has the ability to apportion costs between the two parties.

Here, the court found that the defendant’s motion was untimely in two respects. First, according to the Scheduling Order that was issued on April 23, 2007, “protective orders … must be filed within 14 days of receipt or notice of such disputed discovery.” On April 4, 2008, plaintiff’s counsel informed defendant’s counsel that they would not share the costs of producing electronically stored information. This triggered the 14-day timeline for a protective order. However, defendant did not file the Motion for Protective Order until May 20, 2008, more than a month after the motion sould have been due.

In addition to not filing the motion on time, defendant also failed to comply with the underlying purpose of Fed.R.Civ.P. 26(b)(2)(B). The Rule provides that a motion for protective relief (including cost shifting, which was at stake in this case) should be brought to the court in advance of the undue burden, cost, or expense from which protection is sought. According to the court, “it offends common sense … to read the rule in a way that requires (or permits) the producing party to suffer ‘undue burden or cost’ before raising the issue with the court.”

In this case, defendant elected to suffer the cost of producing the electronically stored information before raising the issue of undue burden or cost. The court opined that the Rule must be read as a means of avoiding cost, and that defendant failed to make timely resort of Fed.R.Civ.P. 26(b)(2)(B). As a result, the court denied the defendant’s Motion for Protective Order.

Going forward, counsel should pay close attention to communications from opposing counsel regarding the sharing of discovery costs. Such communications may trigger timelines that, if not met, will cost your client beaucoup $$$$$. (Oh, by the way, you should read the court’s scheduling order while you’re at it)

Article posted on February 27, 2010 at 12:00 PM |              More... 
Tagged as: Cost Sharing & Shifting, Procedure, Production of Data.
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