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Electronic Discovery – Who Pays?

Silverman v. Shaoul
2010 WL 5116967 ( Sup Ct, Nov 3, 2010)
In this case the defendant filed a motion with the court seeking to compel the plaintiff to pay for the costs incurred by the defendant in responding to plaintiff’s demand for electronically stored information. The court denied the motion.

The general rule pertaining to who bears the cost of responding to discovery demands is that ” during the course of the action each party should bear the expenses it incurs in responding to discovery requests.”

However, “precedent shows that the requesting party bears the cost of electronic discovery when the data sought is not ‘readily available.’ Data is not readily available upon a showing of undue burden by the producing party to obtain the data.”

“The data at issue in the instant case was neither archived nor deleted; it was simply stored in a number of places ‘interspersed with defendant’s various documents for their several business entities.’ The fact that the Defendants were required to ‘process’ the data discloses no undue burden, but merely the normal burden of litigation. Indeed Defendants suggest they keep their records in accordance with the general expectations of the business world.”

“The cost of an examination by Defendants’ agents to see if [material] should not be produced due to privilege or on relevancy grounds should be borne by the [producing party].

The court therefore held that the defendant had to absorb the cost of responding to discovery demands because its records were not “unduly difficult or burdensome to obtain and produce.”


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