Defendant Denied eDiscovery Cost Shifting in Private Contract Case
In Juster Acquisition Co, LLC v. North Hudson Sewage Authority, No. 12-3427 JLL (N.D.N.J. 2013), plaintiff electronic discovery requests were served on the defendant, which included 49 requests for documents and 100 search terms. After the defendant claimed to have produced approximately 8000 pages worth of electronic data, plaintiff served an additional list of 67 proposed search terms for further electronic data discovery. Defendant objected and sought a protective order, arguing that the 67 search terms were overbroad and vague. Alternatively, the defendant sought cost shifting of the discovery to the plaintiff.
The court first denied the defendant’s motion for protective order, finding the defendant had not cited any precedent in law in support of its request. Although the court agreed some of the search terms were vague, it noted that the previous 100 search terms were used by the defendant without issue, and the court did not see a difference in burden for the plaintiff’s additional terms. In denying the motion for protective order, the court also pointed out that defendant had failed to comply with Rule 26(c)(1), requiring parties to certify that they first attempted to resolve the dispute without court action.
The court next addressed the defendant’s request for cost shifting. Citing the famous eDiscovery case Zubulake, the court noted it is only appropriate when discovery imposes an “undue burden” where “inaccessible data” is sought. Active data includes online data and offline storage and archives, while inaccessible data might be backup tapes and erased, fragmented or damaged data.
The court denied the motion for cost shifting. The defendant failed to demonstrate it was unduly burdened by plaintiff ESI request, and it failed to meet its burden to prove why cost-shifting was warranted.