Who Pays for Electronic Discovery?


The cost of electronic discovery can quickly escalate. Traditionally, the responding party has been responsible for the cost of complying with discovery requests. The courts do, however, have the power to shift some or all of the costs of electronic document production to the party requesting the material.

Early in 2002, one court created an eight-step guide to allocating the rising costs of electronic discovery. The formula established in the case, Rowe Entertainment, Inc. v. The William Morris Agency, Inc. 205 F.R.D. 421 (S.D.N.Y. 2002), has since been applied by other jurisdictions.

‘‘In Rowe, the court demonstrated the inherent power of the court to shift the cost of discovery to the requesting party, taking into account the needs of justice and the resources of the parties. The Defendants claimed that the burden and expense of responding to the Plaintiff’s ‘sweeping’ discovery request outweighed any possible benefit, and moved the court to either deny the request outright or order that the Plaintiffs bear the cost.

‘‘In denying the Defendants’ motion, the court adopted an eight-factor balancing test involving the following criteria: 1) the availability of data from other sources; 2) the parties’ financial resources; 3) the specificity of the request; 4) the likelihood of success retrieving the data; 5) the reason the data was retained; 6) the relative benefit from the process of production; 7) total cost; and 8) the ability and incentive to control costs.’’ [10]

Bottom line: In a lawsuit, you could wind up sharing the cost of discovery with your opponent—even when it is the opposition’s IM and e-mail records that are sought.

[10]Christopher D. Wall and Michele C.S. Lange, ‘‘Recent Developments in Electronic Discovery,’’ Washington Lawyer (March 2003).




Instant Messaging Rules. A Business Guide to Managing Policies, Security, and Legal Issues for Safe IM Communication
Instant Messaging Rules: A Business Guide to Managing Policies, Security, and Legal Issues for Safe IM Communication
ISBN: 0814472532
EAN: 2147483647
Year: 2003
Pages: 241
Authors: Nancy Flynn

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