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United States Bankruptcy Trustee v. Dorel Industries, Inc., 2010 U.S. Dist. LEXIS 78096 (W.D. Tex. Aug. 2, 2010).
The expense of compiling a database of responsive email was a recoverable cost for a successful party. The court found that the expense fell "within the category of costs recoverable for 'fees and disbursements for printing' under" 28 U.S.C. § 1920(3).
The expense of compiling a database of responsive email was a recoverable cost for a successful party. The court found that the expense fell "within the category of costs recoverable for 'fees and disbursements for printing' under" 28 U.S.C. § 1920(3).
Diaz v. AIG Marketing, Inc., 2010 U.S. Dist. LEXIS 62092 (S.D. Fla. June 1, 2010).
Although the restoration and searching of otherwise inaccessible e-mail records may have been necessary for use in the case, the court would not tax costs in favor of the prevailing party. The costs were listed or reasonably related to any cost listed under 28 U.S.C. § 1920 for taxation of costs.
Although the restoration and searching of otherwise inaccessible e-mail records may have been necessary for use in the case, the court would not tax costs in favor of the prevailing party. The costs were listed or reasonably related to any cost listed under 28 U.S.C. § 1920 for taxation of costs.
Loomis v. Exelon Corp., 2010 U.S. Dist. LEXIS 24405 (N.D. Ill. Mar. 11, 2010).
The application of successful defendants for reimbursement of electronic discovery costs was denied because defendants did not describe the costs in sufficient detail to allow the court to determine whether the costs were reasonable and necessary.
The application of successful defendants for reimbursement of electronic discovery costs was denied because defendants did not describe the costs in sufficient detail to allow the court to determine whether the costs were reasonable and necessary.
MBIA Insurance Corp. v. Countrywide Home Loans, Inc., 2010 N.Y. Misc. LEXIS 247 (N.Y. Sup. Ct. Feb. 14, 2010).
The New York rule that the requesting party should pay the producing party's cost of discovery was questioned by a New York court which observed that the rule had been applied in New York cases "only when the electronically-stored information to be produced was not readily available."
The New York rule that the requesting party should pay the producing party's cost of discovery was questioned by a New York court which observed that the rule had been applied in New York cases "only when the electronically-stored information to be produced was not readily available."
CBT Flint Partners, LLC v. Return Path, Inc., "CBT II", 2009 U.S. Dist. LEXIS 121188 (N.D. Ga. Dec. 30, 2009).
An unsuccessful plaintiff was ordered to pay a defendant's costs of $243,453.02 in fees for an e-discovery vendor that assisted in the defendant's production of electronically stored information. The court held such costs should be recovered as taxable costs under 28 U.S.C.S. § 1920 because production of electronic files was "the 21st Century equivalent of making copies."
An unsuccessful plaintiff was ordered to pay a defendant's costs of $243,453.02 in fees for an e-discovery vendor that assisted in the defendant's production of electronically stored information. The court held such costs should be recovered as taxable costs under 28 U.S.C.S. § 1920 because production of electronic files was "the 21st Century equivalent of making copies."
Matter of Klein v. Persaud, 2009 N.Y. Misc. LEXIS 3423 (N.Y. Sup. Ct. Dec. 21, 2009).
Although a non-party bank was entitled to reimbursement of its costs for providing electronic discovery, it could recover only at the minimum wage rate for time spent rather than at its "adhesion contract" rate for customer services. Also, the bank was not entitled to copy charges for documents that were produced electronically.
Although a non-party bank was entitled to reimbursement of its costs for providing electronic discovery, it could recover only at the minimum wage rate for time spent rather than at its "adhesion contract" rate for customer services. Also, the bank was not entitled to copy charges for documents that were produced electronically.
Computer Cache Coherency Corp. v. Intel Corp., 2009 U.S. Dist. LEXIS 122596 (N.D. Cal. Dec. 18, 2009).
Costs including Bates numbering and electronic scanning but not metadata extraction and OCR expenses were taxable by the Clerk and reimbursed to the winning party.
Costs including Bates numbering and electronic scanning but not metadata extraction and OCR expenses were taxable by the Clerk and reimbursed to the winning party.
Lake Wright Hospitality, LLC v. Holiday Hospitality Franchising, Inc., 2009 U.S. Dist. LEXIS 122113 (E.D. Va. Oct. 23, 2009).
A billing rate of $175 per hour for counsel's litigation support analyst was considered reasonable by the court. A rate "slightly below" a junior associate's rate rather than a typical data administrator's cost of $46 to $66 per hour was appropriate because litigation technology support required considerable specialized knowledge.
A billing rate of $175 per hour for counsel's litigation support analyst was considered reasonable by the court. A rate "slightly below" a junior associate's rate rather than a typical data administrator's cost of $46 to $66 per hour was appropriate because litigation technology support required considerable specialized knowledge.
Major Tours, Inc. v. Colorel, “Major Tours II”, 2009 U.S. Dist. LEXIS 97554 (D.N.J. Oct. 20, 2009).
Because of undue burden and cost, defendants were not required to retrieve email from 2500 backup tapes at an estimated cost of $1.5 million. However, a scaled-back restoration of 15 to 17 backup tapes was ordered if plaintiff chose to pay half the cost of the restoration.
Because of undue burden and cost, defendants were not required to retrieve email from 2500 backup tapes at an estimated cost of $1.5 million. However, a scaled-back restoration of 15 to 17 backup tapes was ordered if plaintiff chose to pay half the cost of the restoration.
Sensormatic Electronics Corp. v. Tag Co. US, LLC, 2009 U.S. Dist. LEXIS 92217 (S.D. Fla. Aug. 19, 2009).
Although plaintiff was the prevailing party in a patent infringement and false advertisement action, the court denied plaintiff's request for an award of its costs for a forensic examination of computers owned by defendants. Plaintiff had agreed to pay for the forensic examination and an award of costs to the prevailing party under Fed. R. Civ. P. 54 was discretionary rather than mandatory.
Although plaintiff was the prevailing party in a patent infringement and false advertisement action, the court denied plaintiff's request for an award of its costs for a forensic examination of computers owned by defendants. Plaintiff had agreed to pay for the forensic examination and an award of costs to the prevailing party under Fed. R. Civ. P. 54 was discretionary rather than mandatory.
Spieker v. Quest Cherokee, LLC, “Spieker II”, 2009 U.S. Dist. LEXIS 62073 (D. Kan. July 21, 2009).
The court rejected defendant's argument that the cost of production of electronically stored information would be even greater if defendant used its inexperienced in-house information technology staff rather than an outside vendor to conduct production. According to the court, no court had held that a party was excused from discovery because its staff had not previously searched for or produced discovery materials.
The court rejected defendant's argument that the cost of production of electronically stored information would be even greater if defendant used its inexperienced in-house information technology staff rather than an outside vendor to conduct production. According to the court, no court had held that a party was excused from discovery because its staff had not previously searched for or produced discovery materials.
Dahl v. Bain Capital Partners, LLC, 2009 U.S. Dist. LEXIS 52551 (D. Mass. June 22, 2009).
Although defendants were ordered to pay their cost of producing electronic documents, plaintiffs were ordered to pay for any production of defendants' documents in a format other than the format normally maintained by defendants.
Although defendants were ordered to pay their cost of producing electronic documents, plaintiffs were ordered to pay for any production of defendants' documents in a format other than the format normally maintained by defendants.
Omnicare, Inc. v. Mariner Health Care Mgmt. Co., 2009 Del. Ch. LEXIS 95 (Del. Ch. May 29, 2009).
A Delaware court declined to consider cost-sharing for production of electronically stored information on backup tapes until after production from "active stores" indicated that the backup tapes were likely to contain relevant data.
A Delaware court declined to consider cost-sharing for production of electronically stored information on backup tapes until after production from "active stores" indicated that the backup tapes were likely to contain relevant data.
Covad Communications Co. v. Revonet, Inc., "Covad II", 2009 U.S. Dist. LEXIS 47841 (D.D.C. May 27, 2009).
Plaintiff's forensic computer analyst was permitted to make forensic images of defendant's database servers and individual PCs and to search those images within the terms of a protective order. Defendant had to pay the cost of making the images while plaintiff had to pay the cost of searching the images.
Plaintiff's forensic computer analyst was permitted to make forensic images of defendant's database servers and individual PCs and to search those images within the terms of a protective order. Defendant had to pay the cost of making the images while plaintiff had to pay the cost of searching the images.
Robert v. Board of County Commissioners of Brown County, Kansas, 2009 U.S. Dist. LEXIS 40867 (D. Kan. May 14, 2009).
Defendants who offered to make their computers available to plaintiff's computer forensics expert to search for a missing email between a defendant and counsel were not required to pay for the costs of the search, estimated at $1500 to $2500 per computer, despite plaintiff's inability to pay the cost.
Defendants who offered to make their computers available to plaintiff's computer forensics expert to search for a missing email between a defendant and counsel were not required to pay for the costs of the search, estimated at $1500 to $2500 per computer, despite plaintiff's inability to pay the cost.
Fells v. Virginia Department of Transportation, 2009 U.S. Dist. LEXIS 30888 (E.D. Va. Mar. 25, 2009).
Costs of creating electronically searchable documents that went beyond reproducing paper documents in electronic form were not included in the exemplification and copying expenses that could be recovered by the prevailing party under 28 U.S.C.S. § 1920(4).
Costs of creating electronically searchable documents that went beyond reproducing paper documents in electronic form were not included in the exemplification and copying expenses that could be recovered by the prevailing party under 28 U.S.C.S. § 1920(4).
T.A. Ahern Contractors Corp. v. Dormitory Authority of N.Y., 2009 N.Y. Misc. LEXIS 662 (N.Y. Sup. Ct. Mar. 19, 2009).
Plaintiff’s motion for an order compelling defendant to produce employee email was denied pending plaintiff’s agreement that it would pay for the cost of production. Federal cost-shifting precedents such as Zubulake were not applicable in New York state courts where the traditional rule was that the requesting party would pay for production.
Plaintiff’s motion for an order compelling defendant to produce employee email was denied pending plaintiff’s agreement that it would pay for the cost of production. Federal cost-shifting precedents such as Zubulake were not applicable in New York state courts where the traditional rule was that the requesting party would pay for production.
Proctor & Gamble Co. v. S.C. Johnson & Son, Inc., 2009 U.S. Dist. LEXIS 13190 (E.D. Tex. Feb. 19, 2009).
Plaintiff was not required to share defendant’s estimated $200,000 cost to scan defendant’s hard copy documents into searchable files for production to plaintiff. Defendant did not contest the relevance of the data sought by plaintiff, and making documents searchable was “likely to streamline the discovery process and reduce the chance that either side will employ tactics designed to hide relevant information in a mountain of difficult-to-search documents.”
Plaintiff was not required to share defendant’s estimated $200,000 cost to scan defendant’s hard copy documents into searchable files for production to plaintiff. Defendant did not contest the relevance of the data sought by plaintiff, and making documents searchable was “likely to streamline the discovery process and reduce the chance that either side will employ tactics designed to hide relevant information in a mountain of difficult-to-search documents.”
Beckford v. Department of Corrections, 2009 U.S. Dist. LEXIS 80956 (S.D. Fla. Feb. 3, 2009).
Successful plaintiffs were entitled to reimbursement of their electronic discovery expert's fee because "the expert's services were valuable to the case's prosecution."
Successful plaintiffs were entitled to reimbursement of their electronic discovery expert's fee because "the expert's services were valuable to the case's prosecution."
Gray & Assoc., LLC v. Speltz & Weis LLC, 2009 N.Y. Misc. LEXIS 332 (N.Y. Sup. Ct. Feb. 2, 2009).
Plaintiff was ordered to post a $20,000 bond as security for costs because electronic discovery contemplated by the parties was “very expensive” and the prevailing party might be able to recover some or all of its computer forensic fees.
Plaintiff was ordered to post a $20,000 bond as security for costs because electronic discovery contemplated by the parties was “very expensive” and the prevailing party might be able to recover some or all of its computer forensic fees.
Aguilar v. Immigration & Customs Enforcement Div., 2008 U.S. Dist. LEXIS 97018 (S.D.N.Y. Nov. 20, 2008).
Plaintiffs who failed to request production of electronic documents with metadata intact until after defendants had assembled most of their responsive documents without metadata were permitted to obtain the documents with metadata
Plaintiffs who failed to request production of electronic documents with metadata intact until after defendants had assembled most of their responsive documents without metadata were permitted to obtain the documents with metadata
CBT Flint Partners, LLC v. Return Path, Inc., 2008 U.S. Dist. LEXIS 84189 (N.D. Ga. Aug. 7, 2008).
A plaintiff whose motion for expedited discovery was granted upon the condition that plaintiff pay defendant $300,000 for expedited privilege review has been ordered to pay defendant an additional $86,786.95 for 75% of defendant’s attorney fees in responding to plaintiff’s discovery motion.
A plaintiff whose motion for expedited discovery was granted upon the condition that plaintiff pay defendant $300,000 for expedited privilege review has been ordered to pay defendant an additional $86,786.95 for 75% of defendant’s attorney fees in responding to plaintiff’s discovery motion.
Tierno v. Rite Aid Corp., 2008 U.S. Dist. LEXIS 58748 (N.D. Cal. July 31, 2008).
The seven-factor Zubulake test for determining whether the responding party should have to pay all of the costs of responding to discovery requests was applicable only to electronic discovery, and a magistrate judge should not have applied the test to the discovery of paper documents.
The seven-factor Zubulake test for determining whether the responding party should have to pay all of the costs of responding to discovery requests was applicable only to electronic discovery, and a magistrate judge should not have applied the test to the discovery of paper documents.
Cason-Merenda v. Detroit Medical Center, 2008 U.S. Dist. LEXIS 51962 (E.D. Mich. Jul. 7, 2008).
A motion for an order requiring plaintiff to pay half of a defendant’s third party vendor electronic discovery costs was denied. Defendant’s cost-sharing motion was filed after defendant had incurred the costs, and a sensible reading of Fed. R. Civ. P. 26(b)(2)(B) required that a party must seek protection from undue expense before incurring the expense.
A motion for an order requiring plaintiff to pay half of a defendant’s third party vendor electronic discovery costs was denied. Defendant’s cost-sharing motion was filed after defendant had incurred the costs, and a sensible reading of Fed. R. Civ. P. 26(b)(2)(B) required that a party must seek protection from undue expense before incurring the expense.
Peskoff v. Faber, "Peskoff IV", 2008 U.S. Dist. LEXIS 51946 (D.D.C. Jul. 7, 2008).
Defendant was ordered to pay the entire cost of forensic examination of his computer and a server because his failure to place a prompt litigation hold on email and other data and his inadequate search for responsive information necessitated the forensic examination.
Defendant was ordered to pay the entire cost of forensic examination of his computer and a server because his failure to place a prompt litigation hold on email and other data and his inadequate search for responsive information necessitated the forensic examination.
Eckhardt v. Bank of America, N.A., "Eckhardt II", 2008 U.S. Dist. LEXIS 36951 (W.D.N.C. May 6, 2008).
While it had not been shown that missing documents resulted from bad faith of defendant or its counsel, the fact that documents were missing led the court to order defendant to restore backup tapes for key word searches at defendant’s expense.
While it had not been shown that missing documents resulted from bad faith of defendant or its counsel, the fact that documents were missing led the court to order defendant to restore backup tapes for key word searches at defendant’s expense.
Dow Chemical Co. v. Reinhard, 2008 U.S. Dist. LEXIS 35398 (S.D.N.Y. Apr. 29, 2008).
Plaintiff and a non-party law firm to which plaintiff issued a Fed. R. Civ. P. 45 subpoena were ordered to share costs of complying with the subpoena going forward fifty-fifty. The law firm should have anticipated being brought into the litigation, and plaintiff and the law firm (through a client) could easily afford the cost.
Plaintiff and a non-party law firm to which plaintiff issued a Fed. R. Civ. P. 45 subpoena were ordered to share costs of complying with the subpoena going forward fifty-fifty. The law firm should have anticipated being brought into the litigation, and plaintiff and the law firm (through a client) could easily afford the cost.
Mikron Indus. v. Hurd Windows & Doors, Inc., 2008 U.S. Dist. LEXIS 35166 (W.D. Wash. Apr. 21, 2008).
Defendants’ request to have plaintiff pay defendants’ costs of searching for data was denied because defendants had failed to provide a detailed explanation of their difficulties in providing electronically stored information. Such a detailed explanation was required by Fed. R. Civ. P. 26(c)’s meet and confer requirement and Rule 26(b)(2)’s requirement to show that additional sources of data were not reasonably accessible.
Defendants’ request to have plaintiff pay defendants’ costs of searching for data was denied because defendants had failed to provide a detailed explanation of their difficulties in providing electronically stored information. Such a detailed explanation was required by Fed. R. Civ. P. 26(c)’s meet and confer requirement and Rule 26(b)(2)’s requirement to show that additional sources of data were not reasonably accessible.
Coburn v. PN II, Inc., 2008 U.S. Dist. LEXIS 106932 (D. Nev. Mar. 28, 2008).
To minimize burden on the plaintiff, a forensic examination of plaintiff’s home computers was permitted under the supervision of a court-appointed computer specialist paid for by defendants. Plaintiff’s counsel was given sole custody of the mirror image to be made by the expert and was instructed to provide defendants with copies of relevant, responsive documents from the mirror image.
Henry v. Quicken Loans, Inc., "Quicken II", 2008 U.S. Dist. LEXIS 11417 (E.D. Mich. Feb. 15, 2008).
Defendants were ordered to pay additional costs of screening their email for privileged documents because an earlier screen of first names of legal personnel screened out non-legal personnel with the same name.
Defendants were ordered to pay additional costs of screening their email for privileged documents because an earlier screen of first names of legal personnel screened out non-legal personnel with the same name.
Committee Concerning Community Improvement v. City of Modesto, 2007 U.S. Dist. LEXIS 94328 (E.D. Cal. Dec. 11, 2007).
While acknowledging that costs of exemplification and copying of electronic documents may be costs that can be awarded to a winning party, costs of set up fees, online review, and technical time of a provider that synthesized and uploaded over a million email documents for document production were not costs that could be awarded. Any burdensomeness of the denied costs should have been raised in a motion for a protective order on the basis of Fed. R. Civ. P. 26(b)(2)(B).
While acknowledging that costs of exemplification and copying of electronic documents may be costs that can be awarded to a winning party, costs of set up fees, online review, and technical time of a provider that synthesized and uploaded over a million email documents for document production were not costs that could be awarded. Any burdensomeness of the denied costs should have been raised in a motion for a protective order on the basis of Fed. R. Civ. P. 26(b)(2)(B).
Orrell v. Motorcarparts of America, Inc., 2007 U.S. Dist. LEXIS 89524 (W.D.N.C. Dec. 5, 2007).
Following analysis of factors in Fed. R. Civ. P. 26(b)(2)(C), the court order plaintiff in a hostile work environment action to provide her home computer to her former employer for a forensics examination at the employer's cost. Plaintiff testified at deposition that the home computer contained email supporting her claim but the home computer had "crashed".
Following analysis of factors in Fed. R. Civ. P. 26(b)(2)(C), the court order plaintiff in a hostile work environment action to provide her home computer to her former employer for a forensics examination at the employer's cost. Plaintiff testified at deposition that the home computer contained email supporting her claim but the home computer had "crashed".
Ex parte Cooper Tire & Rubber Co., 2007 Ala. LEXIS 229 (Ala. Oct. 26, 2007).
The Alabama Supreme Court has concluded that Fed. R. Civ. P. 26(b)(2)(B) and Wiginton factors (Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568, 571-73 (N.D. Ill. 2004)) should be used in considering the extent to which parties in Alabama state court actions must respond to discovery requests for electronically stored information.
The Alabama Supreme Court has concluded that Fed. R. Civ. P. 26(b)(2)(B) and Wiginton factors (Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568, 571-73 (N.D. Ill. 2004)) should be used in considering the extent to which parties in Alabama state court actions must respond to discovery requests for electronically stored information.
PSEG Power N.Y., Inc. v. Alberici Constructors, Inc., 2007 U.S. Dist. LEXIS 66767 (N.D.N.Y. Sept. 7, 2007).
Plaintiff was ordered to re-produce 3,000 email documents with their corresponding attachments following an earlier production during which attachments became separated from their corresponding emails. Plaintiff also was ordered to pay the estimated $40,000 to $200,000 cost of the second production.
Plaintiff was ordered to re-produce 3,000 email documents with their corresponding attachments following an earlier production during which attachments became separated from their corresponding emails. Plaintiff also was ordered to pay the estimated $40,000 to $200,000 cost of the second production.
Haka v. Lincoln County, 2007 U.S. Dist. LEXIS 64480 (W.D. Wisc. Aug. 29, 2007).
In an incremental process, plaintiff was ordered to provide a narrow set of search words for a search of email within four terabytes of defendant's information potentially responsive to plaintiff's discovery requests. The court also ordered the parties to share the cost of the initial search equally while defendant would pay all of the cost of a privilege review of the documents produced by the initial search.
In an incremental process, plaintiff was ordered to provide a narrow set of search words for a search of email within four terabytes of defendant's information potentially responsive to plaintiff's discovery requests. The court also ordered the parties to share the cost of the initial search equally while defendant would pay all of the cost of a privilege review of the documents produced by the initial search.
Peskoff v. Faber, 2007 U.S. Dist. LEXIS 62595 (D.D.C. Aug. 27, 2007).
Under Fed. R. Civ. P. 26(b)(2)(C), counsel for the parties were ordered to "collaborate" with the court in seeking bids from qualified forensic computer technicians to determine the cost to conduct a forensic examination of computers and a server used by plaintiff's former employer.
Under Fed. R. Civ. P. 26(b)(2)(C), counsel for the parties were ordered to "collaborate" with the court in seeking bids from qualified forensic computer technicians to determine the cost to conduct a forensic examination of computers and a server used by plaintiff's former employer.
Grant v. Homier Distributing Co., 2007 U.S. Dist. LEXIS 63083 (N.D. Ind. Aug. 24, 2007).
A defendant that made no argument that discovery sought by plaintiff was unduly burdensome or excessive in terms of cost was ordered to pay for the discovery it had produced. The court allowed defendant to produce future discovery in whatever form defendant chose but presumed defendant would choose to produce discovery in electronic format if that was the cheapest option.
A defendant that made no argument that discovery sought by plaintiff was unduly burdensome or excessive in terms of cost was ordered to pay for the discovery it had produced. The court allowed defendant to produce future discovery in whatever form defendant chose but presumed defendant would choose to produce discovery in electronic format if that was the cheapest option.
Pipefitters Local No. 636 Pension Fund v. Mercer Human Resource Consulting, Inc., 2007 U.S. Dist. LEXIS 52169 (E.D. Mich. Jul. 19, 2007).
The court reversed a magistrate's order that plaintiffs would bear the cost of restoring or locating defendant's electronic data because there was no record that the magistrate had determined pursuant to Fed. R. Civ. P. 26(b)(2)(B) that the data was not reasonably accessible by defendant because of undue burden or cost.
The court reversed a magistrate's order that plaintiffs would bear the cost of restoring or locating defendant's electronic data because there was no record that the magistrate had determined pursuant to Fed. R. Civ. P. 26(b)(2)(B) that the data was not reasonably accessible by defendant because of undue burden or cost.
Guy Chemical Company, Inc. v. Romaco AG, 2007 U.S. Dist. LEXIS 37636 (N.D. Ind. May 22, 2007).
A court resolving who should pay for discovery requested from a non-party found it unnecessary to consider Zubulake cost-sharing factors because Fed. R. Civ. P. 45(d) allowed the court to specify conditions for such electronic discovery. Defendant was ordered to pay for the discovery because it would be fundamentally unfair for the non-party to bear the estimated cost of $7,000.
A court resolving who should pay for discovery requested from a non-party found it unnecessary to consider Zubulake cost-sharing factors because Fed. R. Civ. P. 45(d) allowed the court to specify conditions for such electronic discovery. Defendant was ordered to pay for the discovery because it would be fundamentally unfair for the non-party to bear the estimated cost of $7,000.
Nederhiser v. Foxworth, 2007 U.S. Dist. LEXIS 34196 (D. Ore. May 7, 2007).
Costs of retrieving email to respond to discovery were not taxable costs to be reimbursed to a winning litigant.
Costs of retrieving email to respond to discovery were not taxable costs to be reimbursed to a winning litigant.
IO Group, Inc. v. Veoh Networks, Inc., 2007 U.S. Dist. LEXIS 31639 (N.D. Cal. Apr. 13, 2007).
Defendant's request for reimbursement of the total cost of its production of responses to plaintiff's discovery was denied because defendant did not show that the data to be produced was "inaccessible".
Defendant's request for reimbursement of the total cost of its production of responses to plaintiff's discovery was denied because defendant did not show that the data to be produced was "inaccessible".
In re Veeco Instruments, Inc. Securities Litigation, 2007 U.S. Dist. LEXIS 23926 (S.D.N.Y. Apr. 2, 2007).
Data on backup tapes was not reasonably accessible, and plaintiffs, under recently amended Fed. R. Civ. P. 26(b)(2), were thus obligated to show good cause for discovery of the data. After evaluating the seven factors in the Advisory Committee Notes to the 2006 amendment to Rule 26, the court held good cause had been shown and ordered defendants to restore the backup tapes. The court held it would conduct a Zubulake cost-shifting analysis only after defendant restored backup tapes and reported the results, time, and expense of the restoration to the court.
Data on backup tapes was not reasonably accessible, and plaintiffs, under recently amended Fed. R. Civ. P. 26(b)(2), were thus obligated to show good cause for discovery of the data. After evaluating the seven factors in the Advisory Committee Notes to the 2006 amendment to Rule 26, the court held good cause had been shown and ordered defendants to restore the backup tapes. The court held it would conduct a Zubulake cost-shifting analysis only after defendant restored backup tapes and reported the results, time, and expense of the restoration to the court.
Georgia Department of Agriculture v. Griffin Industries, 2007 Ga. App. LEXIS 306 (Ga. Ct. App. Mar. 19, 2007).
A state agency was entitled to a hearing on cost-sharing before being ordered to restore email from backup tapes to respond to an open records law request.
A state agency was entitled to a hearing on cost-sharing before being ordered to restore email from backup tapes to respond to an open records law request.
United States ex rel. Parikh v. Premera Blue Cross, 2007 U.S. Dist. LEXIS 23213 (S.D. Ohio Mar. 16, 2007).
While the cost of retrieving archived email may have been substantial, the court declined to order plaintiff to pay a third party's cost of retrieving the email. The third party had claimed the production was burdensome but provided no standard to determine burdensomeness.
While the cost of retrieving archived email may have been substantial, the court declined to order plaintiff to pay a third party's cost of retrieving the email. The third party had claimed the production was burdensome but provided no standard to determine burdensomeness.
Barrows v. Daubert Law Firm LLC, 2007 U.S. Dist. LEXIS 16283 (W.D. Wisc. Mar. 5, 2007).
While Fed. R. Civ. P. 37(a)(4)(A) provided for reimbursement to a party successfully moving for an order compelling discovery, the provision was a fee-shifting rule rather than a sanction for being wrong. A party losing the motion could avoid payment by showing its position was substantially justified.
While Fed. R. Civ. P. 37(a)(4)(A) provided for reimbursement to a party successfully moving for an order compelling discovery, the provision was a fee-shifting rule rather than a sanction for being wrong. A party losing the motion could avoid payment by showing its position was substantially justified.
AAB Joint Venture v. United States, 2007 U.S. Claims LEXIS 56 (U.S. Ct. Claims Feb. 28, 2007).
The government's duty to produce documents was not lessened by its decision to place evidence on backup tapes and thereby raise the cost of production. Whether using the marginal utility test or the Zubulake seven-factor analysis, the court in assessing cost-shifting pursuant to U.S. Ct. Fed. Cl. R. 26(b)(2)(iii) had to balance relevance of potentially restored documents against the burden of restoring the documents from a backup system.
The government's duty to produce documents was not lessened by its decision to place evidence on backup tapes and thereby raise the cost of production. Whether using the marginal utility test or the Zubulake seven-factor analysis, the court in assessing cost-shifting pursuant to U.S. Ct. Fed. Cl. R. 26(b)(2)(iii) had to balance relevance of potentially restored documents against the burden of restoring the documents from a backup system.
Peskoff v. Faber, "Peskoff II", 2007 U.S. Dist. LEXIS 11623 (D.D.C. Feb. 21, 2007).
Unless the producing party shows that data is "inaccessible" under recently amended Fed. R. Civ. P. 26(b)(2)(B), shifting costs of production to the requesting party did not become even a possibility.
Unless the producing party shows that data is "inaccessible" under recently amended Fed. R. Civ. P. 26(b)(2)(B), shifting costs of production to the requesting party did not become even a possibility.
W.E. Aubuchon Co. v. Benefirst, LLC, 2007 U.S. Dist. LEXIS 44574 (D. Mass. Feb. 6, 2007).
Plaintiffs showed good cause for production of "inaccessible" documents under recently amended Rule 26(b)(2)(C) by specifically requesting information needed to prove liability and damages, and defendant was ordered to produce scanned files on a server at an estimated cost of $80,000.
Plaintiffs showed good cause for production of "inaccessible" documents under recently amended Rule 26(b)(2)(C) by specifically requesting information needed to prove liability and damages, and defendant was ordered to produce scanned files on a server at an estimated cost of $80,000.
Apsley v. Boeing Co., 2007 U.S. Dist. LEXIS 5144 (D. Kan. Jan. 17, 2007).
Based on defendants' opposition to a motion to compel production of email through a search of files of up to 550 individuals for terms as broad as "benefit" or "old," the court ordered a hearing to consider the estimated cost of the discovery, whether costs should be borne by plaintiffs, and whether there might be a more efficient method for discovery than electronic searches.
Based on defendants' opposition to a motion to compel production of email through a search of files of up to 550 individuals for terms as broad as "benefit" or "old," the court ordered a hearing to consider the estimated cost of the discovery, whether costs should be borne by plaintiffs, and whether there might be a more efficient method for discovery than electronic searches.
Quinby v. WestLB AG,, 2007 U.S. Dist. LEXIS 2955 (S.D.N.Y. Jan. 4, 2007).
Plaintiff's share of defendant's costs to restore backup tapes to find email of a particular employee of defendant was reduced once it was determined that the same tapes had to be restored at defendant's cost to produce email of other employees.
Plaintiff's share of defendant's costs to restore backup tapes to find email of a particular employee of defendant was reduced once it was determined that the same tapes had to be restored at defendant's cost to produce email of other employees.
Aebischer v. Stryker Corp., 2006 U.S. Dist. LEXIS 87810 (C.D. Ill. Dec. 5, 2006).
Factors weighed by the court in determining sharing of costs of electronic discovery were applied in a cost-sharing analysis of production of paper documents.
Factors weighed by the court in determining sharing of costs of electronic discovery were applied in a cost-sharing analysis of production of paper documents.
Semsroth v. City of Wichita, 2006 U.S. Dist. LEXIS 83363 (D. Kan. Nov. 15, 2006).
After analyzing factors from Zubulake and post-December 1, 2006 rule change Advisory Committee Notes, a court concluded that shifting part of defendant's cost of about $2500 to restore a disaster recovery back-up tape to plaintiffs was not warranted.
After analyzing factors from Zubulake and post-December 1, 2006 rule change Advisory Committee Notes, a court concluded that shifting part of defendant's cost of about $2500 to restore a disaster recovery back-up tape to plaintiffs was not warranted.
Analog Devices, Inc. v. Michalski, 2006 NCBC LEXIS 16 (N.C. Super. Ct. Nov. 1, 2006).
In a case of first impression, the North Carolina Business Court used a "straightforward application" of N.C. R. Civ. P. 26 to decide that "inaccessible" data should be produced and that the costs of production should be divided evenly between the two sides in the litigation.
In a case of first impression, the North Carolina Business Court used a "straightforward application" of N.C. R. Civ. P. 26 to decide that "inaccessible" data should be produced and that the costs of production should be divided evenly between the two sides in the litigation.
Automed Technologies, Inc. v. Knapp Logistics & Automation, Inc., 2006 U.S. Dist. LEXIS 76610 (N.D. Ga. Oct. 19, 2006).
Costs to be awarded to the winning party pursuant to 28 U.S.C.S. õ 1920(4) included the cost to scan documents during on site e-discovery. However, costs to convert documents from one format to another were not recoverable.
Costs to be awarded to the winning party pursuant to 28 U.S.C.S. õ 1920(4) included the cost to scan documents during on site e-discovery. However, costs to convert documents from one format to another were not recoverable.
Ponca Tribe of Indians of Oklahoma v. Continental Carbon Co., 2006 U.S. Dist. LEXIS 74225 (W.D. Okla. Oct. 11, 2006).
The court denied plaintiff permission to image or download defendants' data historian pending demonstration of plaintiffs' willingness to purchase necessary software, pay for needed programming and post a bond for possible damage during data exporting.
The court denied plaintiff permission to image or download defendants' data historian pending demonstration of plaintiffs' willingness to purchase necessary software, pay for needed programming and post a bond for possible damage during data exporting.
Quinby v. WestLB AG,, 2006 U.S. Dist. LEXIS 64531 (S.D.N.Y. Sept. 5, 2006).
Thirty percent of defendant's cost of restoring and searching email of one of its former employees was ordered paid by plaintiff. However, defendant's cost of restoring email of other employees was not shifted to plaintiff because defendant had converted the data into an inaccessible format on backup tapes after defendant should have known the data would be discoverable material.
Thirty percent of defendant's cost of restoring and searching email of one of its former employees was ordered paid by plaintiff. However, defendant's cost of restoring email of other employees was not shifted to plaintiff because defendant had converted the data into an inaccessible format on backup tapes after defendant should have known the data would be discoverable material.
Delta Financial Corporation v. Morrison,, 2006 N.Y. Misc. Lexis 2232 (S. Ct. N.Y. August 17, 2006).
A New York court adopted the "test run" backup tape search procedure of Zubulake I and ordered parties responding to document requests to search samples of data from disaster recovery backup tapes selected by the requesting party. The requesting party was initially responsible for 100% of the costs of the test run, including attorney fees for privilege review.
A New York court adopted the "test run" backup tape search procedure of Zubulake I and ordered parties responding to document requests to search samples of data from disaster recovery backup tapes selected by the requesting party. The requesting party was initially responsible for 100% of the costs of the test run, including attorney fees for privilege review.
Morgenstern v. International Alliance of Theatrical Stage Employees, Local 16,, 2006 U.S. Dist. LEXIS 62386 (N.D. Cal. Aug. 17, 2006).
A cost of about $2,000 for a defendant without computerized files to search through paper files was not so burdensome that cost-sharing by plaintiff should be considered. Defendant failed to cite authority for such cost-sharing or to provide an analysis of cost-sharing factors such as those used in electronic discovery cases.
A cost of about $2,000 for a defendant without computerized files to search through paper files was not so burdensome that cost-sharing by plaintiff should be considered. Defendant failed to cite authority for such cost-sharing or to provide an analysis of cost-sharing factors such as those used in electronic discovery cases.
J.C. Associates v. Fidelity & Guaranty Ins. Co., 2006 U.S. Dist. LEXIS 32919 (D.D.C. May 25, 2006).
To determine the extent to which documents in an insurer's 1.4 million active and inactive claim and litigation files should be produced, the court ordered conversion of a sample of documents into searchable form, a search in the sample for key words, and a statement of costs to perform the sample search, to be followed by the court's determination through use of the marginal utility test of the need for any further search.
To determine the extent to which documents in an insurer's 1.4 million active and inactive claim and litigation files should be produced, the court ordered conversion of a sample of documents into searchable form, a search in the sample for key words, and a statement of costs to perform the sample search, to be followed by the court's determination through use of the marginal utility test of the need for any further search.
Ukiah Automotive Investments v. Mitsubishi Motors of North America, Inc., 2006 U.S. Dist. LEXIS 33352 (N.D. Cal. May 17, 2006).
A plaintiff that claimed all responsive documents from a computer that no longer was functioning had been produced in paper form was ordered to produce the documents in electronic form or pay for inspection of the computer by a third-party neutral inspector.
A plaintiff that claimed all responsive documents from a computer that no longer was functioning had been produced in paper form was ordered to produce the documents in electronic form or pay for inspection of the computer by a third-party neutral inspector.
Creative Science Systems, Inc. v. Forex Capital Markets, LLC, 2006 U.S. Dist. LEXIS 20116 (N.D. Cal. Apr. 4, 2006).
While reinstallation of operating systems on servers was not shown to be a bad faith destruction of evidence of unauthorized use of plaintiff's program, the reinstallation did violate terms of a document preservation order, and the court ordered defendant to bear the cost of analyzing servers to determine use of plaintiff's program.
While reinstallation of operating systems on servers was not shown to be a bad faith destruction of evidence of unauthorized use of plaintiff's program, the reinstallation did violate terms of a document preservation order, and the court ordered defendant to bear the cost of analyzing servers to determine use of plaintiff's program.
Tilberg v. Next Mgmt. Co.,, 2005 U.S. Dist. LEXIS 24892 (S.D.N.Y. Oct. 24, 2005).
Although fact and expert discovery deadlines had passed, defendant was ordered to make a server that had crashed during earlier inspections available to plaintiff's forensics expert for further examination. Defendant's delays would not preclude plaintiff from obtaining discovery.
Although fact and expert discovery deadlines had passed, defendant was ordered to make a server that had crashed during earlier inspections available to plaintiff's forensics expert for further examination. Defendant's delays would not preclude plaintiff from obtaining discovery.
Experian Information Solutions, Inc. v. I-Centrix, 2005 U.S. Dist. LEXIS 42868 (N.D. Ill. Jul. 21, 2005).
Adopting a modified mySimon procedure in order to meet plaintiff's demand for production of metadata, the court ordered the designation of an independent expert, at plaintiff's expense, to report on the content of mirror images of hard drives of defendants' computers.
Adopting a modified mySimon procedure in order to meet plaintiff's demand for production of metadata, the court ordered the designation of an independent expert, at plaintiff's expense, to report on the content of mirror images of hard drives of defendants' computers.
In re Automotive Refinishing Paint Antitrust Litigation, 2005 U.S. Dist. LEXIS 22353 (E.D. Pa. Jun. 29, 2005).
A non-party international trade association was ordered to respond to a request by plaintiffs in a class action for production of documents. However, the association did not have to produce documents otherwise available to plaintiffs, and plaintiffs were required to compensate the association for the costs of production.
A non-party international trade association was ordered to respond to a request by plaintiffs in a class action for production of documents. However, the association did not have to produce documents otherwise available to plaintiffs, and plaintiffs were required to compensate the association for the costs of production.
Etzion v. Etzion, 2005 N.Y. Misc. LEXIS 519 (N.Y. Sup. Ct., Nassau Cty. Feb. 17, 2005).
Applying the New York rule that the requesting party must pay the cost of the production of requested records, the court in a divorce action held the wife was entitled to discovery of financial records of her husband's companies. The court established a procedure for 'cloning' hard drives and possession of the cloned drives by a referee, but the court refused to require the wife to post a bond for any damage that could arise from inspection of the computers.
Applying the New York rule that the requesting party must pay the cost of the production of requested records, the court in a divorce action held the wife was entitled to discovery of financial records of her husband's companies. The court established a procedure for 'cloning' hard drives and possession of the cloned drives by a referee, but the court refused to require the wife to post a bond for any damage that could arise from inspection of the computers.
BASF Fina Petrochemicals L.P. v. H.B. Zachry Co., 2004 Tex. App. LEXIS 10395 (Tex. App. Nov. 18, 2004).
A Texas court ordered a party to reimburse a non-party's costs of $32,000 to produce electronic documents, email, and data. However, the court refused to order reimbursement of the non-party's attorney's fees of almost $250,000 spent in gathering, reviewing, and producing the information.
A Texas court ordered a party to reimburse a non-party's costs of $32,000 to produce electronic documents, email, and data. However, the court refused to order reimbursement of the non-party's attorney's fees of almost $250,000 spent in gathering, reviewing, and producing the information.
OpenTV v. Liberate Technologies, 2003 U.S. Dist. LEXIS 21985 (N.D. Cal. Nov. 18, 2003).
After concluding source code in defendant's database was "inaccessible" due to the time and potential expense of retrieving the code, the court ordered plaintiff to share half the cost of production of various versions of defendant's source code that defendant offered to make available to plaintiff for inspection.
After concluding source code in defendant's database was "inaccessible" due to the time and potential expense of retrieving the code, the court ordered plaintiff to share half the cost of production of various versions of defendant's source code that defendant offered to make available to plaintiff for inspection.
Premier Homes & Land Corp. v. Cheswell, Inc., 2002 U.S. Dist. LEXIS 24948 (1st Cir. December 19, 2002).
Defendant was awarded attorney and expert fees due to plaintiff's fabrication of email used as evidence.
Defendant was awarded attorney and expert fees due to plaintiff's fabrication of email used as evidence.
In re Bristol-Myers Squibb Securities Litigation, 2002 U.S. Dist. LEXIS 13808 (D. N.J. 2002).
Defendants did not have to report to plaintiffs that documents being copied for plaintiffs were being scanned as they were copied, and plaintiffs remained obligated to pay copying charges they agreed to prior to production. However, defendants were required to provide copies of disks with the scanned documents to plaintiff without charge for the scanning.
Defendants did not have to report to plaintiffs that documents being copied for plaintiffs were being scanned as they were copied, and plaintiffs remained obligated to pay copying charges they agreed to prior to production. However, defendants were required to provide copies of disks with the scanned documents to plaintiff without charge for the scanning.
United States v. Visa USA, Inc., 1999 U.S. Dist. LEXIS 10212, (S.D.N.Y. July 7, 1999).
The scope of an archived email search was narrowed and the court reserved decision about which party would bear the cost of producing the emails.
The scope of an archived email search was narrowed and the court reserved decision about which party would bear the cost of producing the emails.
In re Cheyenne Software Sec. Litig., 1997 U.S. Dist. LEXIS 24141 (E.D. N.Y. August 18, 1997).
Sanctions were not imposed on defendants for erasing their hard drives because plaintiffs did not show that they were prejudiced, but substantial fines, attorney's fees, and expense were ordered for defendants' violation of court order.
Sanctions were not imposed on defendants for erasing their hard drives because plaintiffs did not show that they were prejudiced, but substantial fines, attorney's fees, and expense were ordered for defendants' violation of court order.
Zonaras v. GMC, 1996 U.S. Dist. LEXIS 22535 (S.D. Ohio October 17, 1996).
Court compelled defendant to produce crash test and sled test documents and data, although plaintiffs were required to pay half the costs.
Court compelled defendant to produce crash test and sled test documents and data, although plaintiffs were required to pay half the costs.
Torrington Company v. United States, 786 F. Supp. 1027 (Ct. Intl. Trade 1992).
A company was entitled to the administrative record as it existed in an administrative proceeding before the International Trade Administration of the U.S. Department of Commerce in an antidumping investigation regarding antifriction bearings from Italy. However, the company was not entitled to computer instructions, SAS data sets and hard copy of information that would have to be constructed at great burden and expense by Commerce from microfilmed computer printouts that were provided to the company.
A company was entitled to the administrative record as it existed in an administrative proceeding before the International Trade Administration of the U.S. Department of Commerce in an antidumping investigation regarding antifriction bearings from Italy. However, the company was not entitled to computer instructions, SAS data sets and hard copy of information that would have to be constructed at great burden and expense by Commerce from microfilmed computer printouts that were provided to the company.
Rhone-Poulenc Rorer, Inc. v. Home Indemnity Co., 1991 U.S. Dist. LEXIS 8304 (E.D. Pa. June 17, 1991).
Defendant could not excuse itself from producing computerized files due to its unwieldy filing system and then claim undue burden; defendant was ordered to pay costs for information searches and production.
Defendant could not excuse itself from producing computerized files due to its unwieldy filing system and then claim undue burden; defendant was ordered to pay costs for information searches and production.
Williams v. E. I. Du Pont de Nemours & Co., 1987 U.S. Dist. LEXIS 13294 (W.D. Ky. October 23, 1987).
The party requesting discovery had the burden of the costs of data production and had to reimburse the opposing party for a portion of its expense in assembling a database.
The party requesting discovery had the burden of the costs of data production and had to reimburse the opposing party for a portion of its expense in assembling a database.
Delozier v. First Nat'l Bank, 1986 U.S. Dist. LEXIS 30499 (E.D. Tenn. January 14, 1986).
Defendant was ordered to produce requested discovery even though it would have encountered significant labor and expense in doing so.
Defendant was ordered to produce requested discovery even though it would have encountered significant labor and expense in doing so.
Adams v. Dan River Mills, Inc., 1972 U.S. Dist. LEXIS 15472 (W.D. Va. January 20, 1972).
In an employment discrimination case, the court required defendant to provide plaintiffs with defendant's payroll and tax records in the form of computer cards or tapes and W-2 printouts.
In an employment discrimination case, the court required defendant to provide plaintiffs with defendant's payroll and tax records in the form of computer cards or tapes and W-2 printouts.
