Plaintiff Prevails In Cost-Shifting Dispute Under Zubulake Standards
When is cost-shifting appropriate in response to plaintiff electronic discovery requests? In Novick v. AXA Newtowk, LLC, et al., No. 07Civ. 7767 (AKH)(KNF)(September 24, 2013), the plaintiffs sought ESI and email chains from defendant. The plaintiff suggested custodians and the relevant time period to conduct the search, and defendants used a third-party vendor to search and cull the production. An Affidavit filed by defendants noted that the plaintiff ESI requests called for 10 custodians’ email databases be searched for 800 client names, and that resulted in 80 gigabytes of data to be culled. However, after all was said and done, the defense production consisted of fewer than 400 documents.
Defendants then moved for cost shifting of the ESI expenses in the amount of $40,000 by arguing that plaintiff’s requests had been excessive and overburdensome. Plaintiffs disagreed, and blamed defendants for conducting an “improper search” that resulted in only useless emails being found and produced.
The court considered the standard set forth in the Zubulake series of cases to determine whether cost shifting was appropriate in this case. Zubulake held that cost-shifting “should be considered only when electronic discovery imposes an ‘undue burden or expense’ on the responding party.” Whether the production is unduly burdensome turns on whether the electronic data is in accessible or inaccessible format. Since the email and other ESI in this case was in accessible format, defendants failed in their reliance of Zubulake and did not meet their burden. The court held that cost shifting to plaintiffs was not proper in this case, and that the defense must bear its own costs of this production.