Wade v. McConville, Index No. 14139/2015, 11/3/2016 (Rosenbaum, J.)

Discovery; General Rule on Discovery Costs; Shifting the Burden on Discovery Costs; Electronically Stored Information; CPLR § 3103; Protective Order

By: Nandini Chowdhury | Staff Writer

Plaintiff hired Defendants in a previous commercial transaction.  Plaintiff was not satisfied with Defendants’ services during the course of Defendants’ representation. Accordingly, Plaintiff filed suit for legal malpractice and the parties engaged in discovery. Defendants produced their complete file regarding their representation of Plaintiff. Importantly, Plaintiff requested a production of Electronically Stored Information (“ESI”), that included Defendants’ Case Management System Entries, calendar, docket, appointments, and diary. In response, Defendants worked with a third-party provider to investigate the costs associated with complying with such a request. Defendants determined that such a production would be financially burdensome and informed Plaintiff that Plaintiff would have to bear the costs if she wished to proceed with her discovery request.

Consequently, Defendants made a motion for an order granting a protective order pursuant to CPLR § 3103, conditioning the additional production of ESI on Plaintiff’s complete payment of costs associated with production. Defendants contended that they should not have to bear the costs associated with producing the additional ESI due to the Plaintiff’s failure to specifically articulate her request with sufficient particularity regarding Defendants’ Case Management System Entries. Plaintiff did not believe she should cover such costs.

The Court denied Defendants’ motion for a protective order. First, the Court opined that Defendants failed to establish a financial burden. Generally, during the course of an action, each party should bear the expenses it incurs in responding to discovery requests. Here, Defendants failed to proffer a proposal of the costs associated with the production of the additional discovery and failed to submit an affidavit from either themselves or the third-party provider on the issue. Defendants, therefore, provided no evidence for the Court to deviate from the general rule.

Second, the Court found that Defendants failed to address previous case law regarding the shifting of costs where ESI costs are significant. In Zubulake v. UBS Warburg, LLC, the court determined that a producing party may demonstrate why costs should be shifted to the requesting party if ESI costs are significant. The party must allege one or more of the following: (1) the extent the request is tailored to discover relevant information; (2) the availability of the information from other sources; (3) the cost of products compared to the amount in controversy; (4) the cost of production compared to the party’s resources; (5) the relative ability of each party to control costs and its incentive to do so; (6) the important of the issues at stake in litigation; (7) the relative benefits to the parties obtaining the information. Here, the Defendants failed to allege any of the factors set forth in Zubulake, thus, failing to shift the burden to Plaintiff.

Based upon the foregoing, the Court denied Defendant’s motion for a protective order.

Wade v. McConville, Index No. 14139/2015, 11/3/2016 (Rosenbaum, J.)

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