eDiscovery Case Law: Defendants Not Required to Share Costs for Plaintiff’s Third Party Request

http://ow.ly/8pxaf

An article by Doug Austin on his blog eDiscovery Daily Blog.

The article discusses the case of  Last Atlantis Capital LLC v. AGS Specialist Partners, No. 04 C 0397, 2011 WL 6097769 (N.D. Ill. Dec. 5, 2011), in which the plaintiff had sought cost sharing from the defendant in order to obtain data that belonged to a third-party.

The Court rejected the plaintiff's request for cost sharing.  The article explains, "

• Court's comments during the September Status Conference as evidence that costs should be shared: While the court admitted to suggesting to Defendants that Plaintiffs' proposal of cost sharing sounded “reasonable”, those comments “were made to encourage movement within this stagnant litigation”. Once the Court was able to further research the precedent surrounding cost-sharing, it found no basis for accepting the Plaintiffs' cost-sharing proposal.
• Plaintiffs' reliance upon the Sedona Conference Commentary on Non–Party Production & Rule 45 Subpoenas, 9 Sedona Conf. J. 197 (2008): The court felt that this Sedona Conference Commentary was “almost entirely irrelevant” to the matter at hand as it “is largely concerned with the burden being placed on a non-party to produce information”. Despite the fact that the Commentary “includes a suggestion that parties meet and confer to ‘address’ cost-sharing, amongst other things, in their initial Rule 26(f) conference”, it did not dictate such an arrangement; rather, the Commentary declares that “[c]ost-shifting or cost-sharing are inconsistent with the so-called ‘American Rule’ that each party bears its own litigation costs”.
• Other Court Opinions: The plaintiffs cited several court opinions – such asWiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568, 573 (N.D.Ill.2004) and Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 320 (S.D.N.Y.2003) – to attempt to bolster their argument. However, the court noted that all of the court opinions “miss the mark as they each address the issue of cost-sharing amongst the requesting party and the producing party, not between a requesting party and a non-requesting, non-producing opponent in the underlying litigation, such as with Defendants.” 

The court acknowledged that the defendants had “substantially more resources,” but noted that was a fact it could not consider."  A link to the referenced Sedona Conference principles is provided in the article.