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The “American Rule” Rules: Court Declines to Compel Defendants to Share Cost of Plaintiffs’ Subpoena : Electronic Discovery Law

January 5, 2012 By Leave a Comment

Last Atlantis Capital LLC v. AGS Specialist Partners, No. 04 C 0397, 2011 WL 6097769 (N.D. Ill. Dec. 5, 2011)

In this case, Plaintiffs proposed that Defendants share in the cost of obtaining data that Plaintiffs subpoenaed.  Obtaining the information at issue was described by the court as “the linchpin of this entire matter.”  Moreover, the court had suggested (at a status conference) that it would be “reasonable” for Defendants to aid in half the costs.  However, Defendants “steadfastly maintained that they ha[d] no independent need for the information, except for rebuttal purposes” and objected strongly to the proposed cost-sharing on the grounds that there was “neither reason nor precedent” for it.  Noting that “the time to take definitive stance on the issue ha[d] arrived,” the court agreed.

via The “American Rule” Rules: Court Declines to Compel Defendants to Share Cost of Plaintiffs’ Subpoena : Electronic Discovery Law.

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District Court Allows Taxation of Costs Related to Electronic Discovery : Electronic Discovery Law

October 15, 2011 By Leave a Comment

In re Aspartame Antitrust Litig., No. 2:06-CV-1732-LDD, 2011 WL 4793239 (E.D. Pa. Oct. 5, 2011)

In this case, the court addressed plaintiffs’ motion to deny or reduce defendants’ bill of costs, and in particular their objections to the costs related to electronic discovery.  Recognizing that “taxing e-discovery is a new area of law where courts have diverged in their approaches,” the court denied plaintiff’s motion as to many of the costs at issue but did disallow or reduce some costs, including those incurred for the convenience of counsel.

“A court may tax ‘fees for printed or electronically recorded transcripts necessarily obtained for use in the case’ and ‘fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case,’ as well as other specifically enumerated fees” pursuant to 28 U.S.C. § 1902(2) and (4).  In the present case, plaintiffs objected to many of the allowed costs, including those related to e-discovery.

via District Court Allows Taxation of Costs Related to Electronic Discovery : Electronic Discovery Law.

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For Discovery Violation of “Exotic Magnitude”, Court Denies Reconsideration of Order Compelling Production and Finding that Objections were Waived : Electronic Discovery Law

June 2, 2011 By Leave a Comment

DL v. District of Columbia, No. 05-1437 (RCL), 2011 WL 1770468 (D.D.C. May 9, 2011)

Upon learning that the District intended to produce email on a rolling basis even after trial had concluded despite two prior court orders compelling production, the court held that the District had waived all objections, including privileges, and ordered production within one week of the close of trial.  Defendants moved for reconsideration.  Likening the proposed production to “a plane with landing gear that deploys just after touchdown, or a stick of dynamite with a unique fuse that ignites only after it explodes,” the court denied the motion.

On the first day of trial, when the plaintiff class had been waiting “more than six years” for resolution, plaintiffs’ counsel revealed that his office had received “thousands of e-mails just days before trial” and that the District had indicated its intention to continue producing throughout and even following trial.  When asked to explain, defense counsel indicated that a “supplemental search” had unearthed “tens of thousands of e-mails that had to be reviewed for relevance and privilege” and that she had not informed the court because the District “did not know it was going to fail to complete the review process.”  She further indicated that the District was “understaffed” that “discovery was voluminous” and that “there simply were not enough bodies to process it all before trial.”  The court took issue, particularly where many of the emails were more than two years old, and ordered production of all emails within one week of the close of trial.  In doing so, the court reasoned that the deadline “would make any motion by plaintiffs to reopen the trial record to include newly introduced evidence more timely.”  The court also held that any objections, including privileges, had been waived, reasoning that “litigating privileges and objections post-trial would … unreasonably delay any possible efforts by plaintiffs to reopen the trial record.”  Defendants moved for reconsideration.

via For Discovery Violation of “Exotic Magnitude”, Court Denies Reconsideration of Order Compelling Production and Finding that Objections were Waived : Electronic Discovery Law.

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Court Compels Production of ESI for a Period of 18 Years, Shifts Majority of Costs to Requesting Party : Electronic Discovery Law

July 10, 2010 By Leave a Comment

Takeda Pharm. Co., Ltd. v. Teva Pharm. USA, Inc., 2010 WL 2640492 (D. Del. June 21, 2010)

Defendants sought production of electronically stored information for a period of 18 years – a significant departure from the default period of five years previously imposed.  Upon plaintiffs’ showing that retrieval of the additional data by a vendor would cost approximately $1 million to $1.5 million (not including the cost of review), the court found the information was “not reasonably accessible”.  However, the court also found that defendants had shown good cause to compel the requested production.

via Court Compels Production of ESI for a Period of 18 Years, Shifts Majority of Costs to Requesting Party : Electronic Discovery Law.

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Culpability for Allowing Evidence to Become Inaccessible a Factor for Consideration when Determining Good Cause to Compel Production : Electronic Discovery Law

July 1, 2010 By Leave a Comment

Major Tours, Inc. v. Colorel, 2010 WL 2557250 (D.N.J. June 22, 2010)

Appealing an order from the magistrate judge, plaintiffs argued that defendants should bear the costs of producing inaccessible data where it was defendants’ failure to preserve that resulted in the data’s inaccessibility.  The court declined to support such a rule, finding that defendants’ culpability was merely a factor for consideration when deciding whether to compel production for good cause.  The court also found that the magistrate judge had adequately considered defendants’ culpability when crafting the underlying order and did not abuse his discretion.  Accordingly, the order was affirmed.

via Culpability for Allowing Evidence to Become Inaccessible a Factor for Consideration when Determining Good Cause to Compel Production : Electronic Discovery Law.

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Court Finds Data “Not Reasonably Accessible,” Denies Motion to Compel : Electronic Discovery Law

February 4, 2010 By Leave a Comment

Rodriguez-Torres v. Gov. Dev. Bank of Puerto Rico, 2010 WL 174156 (D.P.R. Jan. 20, 2010)

In this employment discrimination case, the court found the electronically stored information (“ESI”) requested by the plaintiffs “not reasonably accessible because of the undue burden and cost” and that plaintiffs had failed to show good cause to compel production of the ESI and denied plaintiffs’ motion to compel.

via Court Finds Data “Not Reasonably Accessible,” Denies Motion to Compel : Electronic Discovery Law.

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