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Cost Allocation > Costs Shifted to Requesting Party
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."
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.
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.
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.
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.
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.
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.
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".
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.
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.
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.
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.
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.
Clever View Investments, Ltd. v. Oshatz, 2006 U.S. Dist. LEXIS 5006 (S.D.N.Y. Feb. 8, 2006).
In a trademark infringement action, defendants were ordered to pay 40% of the cost of copying documents they requested after plaintiffs demonstrated at least some of the copying was unnecessary due to availability of information through other means.
In a trademark infringement action, defendants were ordered to pay 40% of the cost of copying documents they requested after plaintiffs demonstrated at least some of the copying was unnecessary due to availability of information through other means.
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.
Portis v. City of Chicago,, 2004 U.S. Dist. LEXIS 24737 (Dec. 7, 2004).
To gain access to a database created by plaintiffs, defendant had to pay 50% of the plaintiffs' cost as calculated using the hourly billing rates of plaintiffs' consultant and paralegals, rather than their salaried rates.
To gain access to a database created by plaintiffs, defendant had to pay 50% of the plaintiffs' cost as calculated using the hourly billing rates of plaintiffs' consultant and paralegals, rather than their salaried rates.
Toshiba America Electronic Components, Inc. v. The Superior Court of Santa Clara County, 2004 Cal. App. LEXIS 2055 (Cal. Ct. App. Dec. 3, 2004)
A California appellate court has ruled that the requesting party must bear the reasonable expense of translating into usable form a data compilation requested in discovery. According to the court, Cal. Code Civ. Proc. õ 2031(g)(1) was intended by the California Legislature to be an exception to the general rule that the responding party pays for the costs of responding to a discovery request. The appellate court held that a trial court, rather than simply ordering a discovery response that could cost over $1.5 million, should determine the reasonable and necessary costs of translating a responsive data compilation that the requesting party should be obligated to pay under Section 2031.
A California appellate court has ruled that the requesting party must bear the reasonable expense of translating into usable form a data compilation requested in discovery. According to the court, Cal. Code Civ. Proc. õ 2031(g)(1) was intended by the California Legislature to be an exception to the general rule that the responding party pays for the costs of responding to a discovery request. The appellate court held that a trial court, rather than simply ordering a discovery response that could cost over $1.5 million, should determine the reasonable and necessary costs of translating a responsive data compilation that the requesting party should be obligated to pay under Section 2031.
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.
Multitechnology Services v. Verizon Southwest, 2004 U.S. Dist. LEXIS 12957 (D. Tex. July 12, 2004).
After questioning application of the seven-factor cost-shifting test of Zubulake, a magistrate determined that defendant telephone company should provide electronic information about its customers and should pay half the cost of about $60,000 to compile the information for the plaintiff broadband services company. Although shifting half of the costs to the telephone company, the magistrate noted that the costs would be classified as court costs to be recovered by the prevailing party at the end of the case.
After questioning application of the seven-factor cost-shifting test of Zubulake, a magistrate determined that defendant telephone company should provide electronic information about its customers and should pay half the cost of about $60,000 to compile the information for the plaintiff broadband services company. Although shifting half of the costs to the telephone company, the magistrate noted that the costs would be classified as court costs to be recovered by the prevailing party at the end of the case.
Portis v. City of Chicago,, 2004 U.S. Dist. LEXIS 12640 (N.D. Ill. July 6, 2004).
Plaintiffs in a federal civil rights class action had to produce a database they prepared from information received from defendant city because the database would not disclose plaintiffs' litigation strategy and it would be an undue hardship for the city to compile its own database. However, the court ordered the city to pay its "fair share" of the cost of producing the database.
Plaintiffs in a federal civil rights class action had to produce a database they prepared from information received from defendant city because the database would not disclose plaintiffs' litigation strategy and it would be an undue hardship for the city to compile its own database. However, the court ordered the city to pay its "fair share" of the cost of producing the database.
United Parcel Service of America, Inc. v. The Net, Inc., 2004 U.S. Dist. LEXIS 10850 (E.D.N.Y., June 14, 2004).
In light of the trend to equitable cost-shifting in discovery, an indigent jailed in Canada was not required to bear the cost of producing requested documents.
In light of the trend to equitable cost-shifting in discovery, an indigent jailed in Canada was not required to bear the cost of producing requested documents.
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.
Open TV v. Liberate Technologies, 219 F.R.D. 474 (N.D. Cal 2003).
California court adopts S.D.N.Y.'s Zubulake cost-shifting approach for discovery of "inaccessible" electronic data.
California court adopts S.D.N.Y.'s Zubulake cost-shifting approach for discovery of "inaccessible" electronic data.
Byers v. Ill. State Police, 2002 U.S. Dist. LEXIS 9861, 53 Fed. R. Serv. 3d (Callaghan) 740 (N.D. Ill. May 31, 2002).
Requesting party ordered to pay cost of licensing old program to retrieve emails.
Requesting party ordered to pay cost of licensing old program to retrieve emails.
Rowe Entertainment, Inc. v. William Morris Agency, Inc., 2002 U.S. Dist. LEXIS 8308; 53 Fed. R. Serv. 3d (Callaghan) 296, 2002-1 Trade Cas. (CCH) P73, 677 (S.D.N.Y. May 8, 2002).
Judge upholds earlier Rowe order shifting costs of tape restoration.
Judge upholds earlier Rowe order shifting costs of tape restoration.
Rowe Entertainment, Inc. v. William Morris Agency, Inc., 2002 U.S. Dist. LEXIS 8308 (S.D.N.Y. May 8, 2002).
Court considers factors determining whether to shift costs of backup tape restoration to requesting party; determines requesting party should pay.
Court considers factors determining whether to shift costs of backup tape restoration to requesting party; determines requesting party should pay.
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.
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.
Oppenheimer Fund v. Sanders, 1978 U.S. LEXIS 113 (U.S. Supreme Court, June 19, 1978).
The Supreme Court held that the Second Circuit abused its discretion in a class action when it ordered petitioners to pay a third party to compile a list of class members for those representing the class; petitioners were required to assist in compilation but those seeking the information bore the burden of expenses.
The Supreme Court held that the Second Circuit abused its discretion in a class action when it ordered petitioners to pay a third party to compile a list of class members for those representing the class; petitioners were required to assist in compilation but those seeking the information bore the burden of expenses.
