Plaintiff Entitled to ESI with Metadata; Costs Borne by Defendants
In Mancino v. Fingar Insurance Agency, Docket No. 653754/2012, 2014 NY Slip Op 30005(U)(Sup.Ct.N.Y.County January 2, 2014) plaintiffs are insurance policy holders suing their broker and insurance company for breach of contract and other business torts. Defendants responded to plaintiff discovery requests by tendering a hard copy production.
Plaintiffs filed a Motion to Compel production of certain discovery, and also requested that the hard copy documents that were produced be provided as electronically stored information (ESI) in native file format with TIFF images complete with metadata. The reason why the hard copies were insufficient was that Plaintiffs was seeking information regarding:
- Dates of Creation
- Dates of Edits
Plaintiffs needed this metadata to determine if the reports were made before or after litigation had commenced. Defendants objected to producing the ESI in native file format with metadata, claiming that the costs would exceed $3,500 and the TIFF production would be a laborious task. The court disagreed, holding that generally the producing party bears the costs of discovery “even with respect to electronically stored information such as emails.” The court did consider whether cost shifting would be appropriate, and cited the seven factors:
1. The extent to which the request is specifically tailored to uncover relevant information;
2. The availability of the information from other sources;
3. The total cost of production, as compared to the amount in controversy;
4. The total cost of production, as compared to the resources of the parties;
5. The relative ability of the parties to control costs and their incentives to do so;
6. The importance of the issues at stake in the litigation; and
7. The relative benefits of the parties by obtaining the information.
After concluding that none of the factors support the basis for cost shifting, the court ordered defendants to produce the ESI in native file format with metadata to plaintiffs and to bear the costs of the production themselves.