New York Appellate Division Rules on ESI Production Costs
Earlier this year, in U.S. Bank N.A. v. GreenPoint Mortgage Funding Inc., the New York Appellate Division, 1st Department, ruled the producing party should bear the cost of “searching for, retrieving, and producing documents, including electronically stored information.” The court further ruled that ESI production costs can be shifted at the court’s discretion. This decision benefits plaintiffs who, if they had to bear the cost of requested production, might be discouraged from filing meritorious claims.
When deciding this case, the court looked to a 2003 ruling by the Southern District of New York in Zubulake v. UBS Warburg, LLC, citing the following seven factors that a court should consider when deciding whether to shift ESI production costs:
- The extent to which the request is specifically tailored to discover relevant information;
- The availability of such information from other sources;
- The total cost of production, compared to the amount in controversy;
- The total cost of production, compared to the resources available to each party;
- The relative ability of each party to control costs and its incentive to do so;
- The importance of the issues at stake in the litigation; and
- The relative benefits to the parties of obtaining the information.
The court noted these factors should be a guide as opposed to a checklist. The court also established that parties should first request to limit or strike specific discovery requests for being overbroad, burdensome or irrelevant, and only after having done so should they file a motion to shift costs. Although plaintiffs may initially have to bear the cost of their own ESI production, this ruling does offer them recourse for dealing with unnecessary requests by the defense.
While this case sets a precedent in New York, rules for ESI production of course vary from state to state, and case law surrounding electronic discovery continues to evolve. Class action attorneys greatly benefit from working with eDiscovery experts that stay abreast of all discovery case law developments.
In addition to knowing current eDiscovery rules and ESI protocols, a plaintiff eDiscovery firm provides class action attorneys and plaintiff steering committees with access to innovative technology that streamlines the entire discovery process. Modern technologies providing cutting edge automated issue coding, AI-enhanced machine language translation programs and eDiscovery software to target, find, secure and make ready for attorney review all relevant documents in a case.
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