Court Denies Defendants’ Request for eDiscovery Cost Shifting

1 Aug 2016

In Nehad et. al. v. Browder et. al., Case No. 15-1386 (N.D. Cal., July 15, 2016), Plaintiffs, the parents of a man who was fatally shot by police officer Defendant Browder, filed a civil rights action based upon excessive force, assault, battery, negligence, and wrongful death. During discovery, the parties sought court intervention into disputes regarding 40 different requests for production and interrogatories. The court narrowed the scope of discovery to the past three years and also to investigation files for incidents in which an officer shooting resulted in injury or death. Defendants filed a Motion for Reconsideration, objecting to the production as burdensome and requesting cost shifting.

The court did not find the production burdensome. Defendants argued that it would require “thousands of hours” of labor to review and analyze thousands of pages of documents, hundreds of compact discs, and potentially several hundred DVDs to redact for privacy and to review for accuracy. The court found that Defendants failed to introduce the issue during the discovery dispute itself. The court therefore declined to reverse its ruling on the matter. Defendants then requested that Plaintiffs bear the cost of assembly and production.

The court noted that the standard for ordering cost shifting requires that it only be considered when eDiscovery imposes an undue burden or expense, and only when the electronic data is “relatively inaccessible.” The court found that Defendants did not make any showing of burden or expense, and therefore, they were not entitled to cost shifting. Finally, the court denied Plaintiffs’ request for sanctions, ordering that Defendants’ arguments, while not prevailing, were not unreasonable.

ILS – Plaintiff ESI Discovery Experts