Defendants Can’t Pass the Buck on eDiscovery

Defendants forced to comply with a request for electronic documents can’t pass the costs for prodcuing those documents onto the requester. That was the finding by a New York state judge in a case involving a $67,000 tab for complying with an electronic discovery order.

The case, Silverman v. Shaoul, involves a lawsuit by the owners of a $2 million  condo who allege their unit has sustained structural damage that has rendered it unihabitable and they’re blaming the developer and management company for it.

After receiving an electronic discovery request from the condo owners, the attorney for the developer fired off a letter to the owners’ lawyer estimating the costs for complying with the order and telling him the owners would have to pick up the tab for producing the electronic data  if he didn’t respond to the letter in two days. The owners’ attorney didn’t respond. The developer produced some 7000 pages of documents and billed the owners 67 grand for them.

In her decision on the issue, New York Supreme Court Justice Eileen Bransten ruled that failure to respond to the letter by the developer’s attorney did not represent tacit approval of the terms in the letter by the owners. Moreover, she added, by precedent, the cost of producing documents lies with the producer, not the requester. The only exception to that is if the data requested is not “readily available.” That’s not the case in this situation, she reasoned.