Pursuant to 28 U.S.C. § 1920, a prevailing party may have a right to recover certain costs associated with the litigation.  Many prevailing parties seek to recoup costs attendant to e-discovery, given the expense associated with collecting, processing and producing electronically stored information (“ESI”).  However, most federal courts confronting the issue have determined that e-discovery costs are recoverable only in
Continue Reading The Costs of E-Discovery and What May be Recoverable Under 28 U.S.C. § 1920

Generally, the party producing discovery bears the costs of production. But, shifting to the non-producing party the costs of production is sometimes warranted.  This issue was recently tackled by a Kansas District Court in the matter Lawson v. Spirit AeroSystems, 2020 WL 3288058 (D. Kan. June 18, 2020).

Background

Following his retirement from Spirit AeroSystems, Inc.’s (“Spirit”), plaintiff Larry
Continue Reading If the Proportionality Doesn’t Fit, Courts May Cost-Shift

On October 1, 2018, a new Rule (specifically, a new subdivision to existing Rule 11-e) of the Commercial Division Rules, will go into effect. 

Rule 11-e governs Responses and Objections to Document Requests.  The new subdivision, promulgated by administrative Order of Chief Administrative Judge Lawrence K. Marks, governs the use of technology-assisted review (“TAR”) in the discovery process. 

The
Continue Reading Important Update for Those Who Practice in the Commercial Division of the NYS Supreme Courts

In my December 2016 blog post, I wrote about how developing effective key words is very much an iterative and thought intensive process.  This message was recently reaffirmed by a decision out of the Southern District of Ohio, wherein the Judge reminded us that the process of identifying search terms it not merely one of guesswork.  Rather, it requires
Continue Reading Developing Effective Key Words is an Iterative and Thought Intensive Process

In 2012, Klipsch Group Inc. (“Klipsch”), a manufacturer of sound equipment, filed a complaint against ePRO E-Commerce Ltd. (“ePRO”), alleging an ePRO subsidiary was selling counterfeit headphones.  Through discovery demands, Klipsch called for the production of information relevant to the sale of the allegedly infringing product, including emails and specific sales data.    Eventually, however, it became clear that ePRO was
Continue Reading Is a $2.7 Million Dollar E-Discovery Sanction Appropriate In a Lawsuit Valued at $20,000? The Second Circuit Says, Yes.

Armstrong Pump, Inc. v. Hartman, No. 10-CV-446S, 2016 WL 7208753 (W.D.N.Y. Dec. 13, 2016)

In this case, pending before the Court was a motion by Armstrong Pump Inc. (“Armstrong”) to compel formal production of certain documents that defendant Optimum Energy LLC (“Optimum”) considered the functional equivalent of its proprietary source code.  This “formal production” Armstrong sought to compel consisted of


Continue Reading The Western District Declines to Compel Additional Discovery

The amendment to Federal Rule of Civil Procedure 26(b)(1) (which defines the scope of permissible discovery) did away with the timeworn “reasonably calculated to lead to the discovery of admissible evidence” standard.  In its place is now the “proportionality standard,” which explicitly imposes a responsibility on litigants to tailor their discovery requests to account for the significance of the information


Continue Reading Proportionality Is the Critical Inquiry in Federal Court Discovery

As those of you reading this well know, many studies and decisions show continued dissatisfaction with the discovery process. Remedies to this dissatisfaction that have gained traction are the ideas of cooperation, proportionality and reasonableness in the discovery process – the very themes that lay at the heart of the proposed amendments to the Federal Rules.

On April 29, 2015,


Continue Reading SCOTUS Endorses New FRCP