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Cost Allocation > Producing Party Pays Costs of 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.”
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.
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.
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.
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.
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.
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.
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.
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.
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.
Xpedior Credit Trust v. Credit Suisse First Boston, 2003 U.S. Dist. LEXIS 17497 (S.D.N.Y. Oct. 2, 2003).
Zubulake cost-shifting test applied; defendant ordered to bear its own costs in producing "inaccessible" data.
Zubulake cost-shifting test applied; defendant ordered to bear its own costs in producing "inaccessible" data.
Linnen v. A.H. Robins Co., 1999 Mass. Super. LEXIS 240, 10 Mass. L. Rep. 189 (Mass. Super. Ct. June 16, 1999).
Court acknowledges significant expense in restoring backup tapes, but orders restoration, reasoning that such is a risk undertaken by companies choosing electronic storage media.
Court acknowledges significant expense in restoring backup tapes, but orders restoration, reasoning that such is a risk undertaken by companies choosing electronic storage media.
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.
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.
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.
Bills v. Kennecott Corp., 108 F.R.D. 459, 1985 U.S. Dist. LEXIS 15310, 42 Empl. Prac. Dec. (CCH) P36732, 40 Fair Empl. Prac. Cas. (BNA) 1182 (D. Utah Oct. 3, 1985).
Court refuses to shift costs defendant incurred in producing printouts.
Court refuses to shift costs defendant incurred in producing printouts.
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.
