Cost Shifting (ESI) 2

Case Citation:	T.A. Ahern Contractors Corp. v. Dormitory Auth. of State of N.Y., 875 N.Y.S.2d 862 (N.Y. Sup. Ct. 2009)
Nature of Case:
Electronic Data Involved:	ESI
E-Discovery Issue:	Court granted both parties’ motions to compel production of electronically stored information but declined to shift the cost of production to the producing party and “overturn the well settled rule in New York State that the party seeking discovery bear the cost incurred in its production”
Case Summary:	Available
Attributes:	Local Rule; Motion to Compel; Cost Shifting

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T.A. Ahern Contractors Corp. v. Dormitory Auth. of State of N.Y., 875 N.Y.S.2d 862 (N.Y. Sup. Ct. 2009)

In this breach of contract action, both parties sought to compel the production of requested discovery.  Specifically, plaintiff sought to compel production of defendant’s project-related emails.  Defendant did not object to such production but, because of technological limitations, indicated the need to hire an outside vendor to assist in the production at an estimated cost of $35,000.  Defendant indicated it would begin the process of production, including hiring the vendor, upon plaintiff’s confirmation that it would bear the production costs.  Plaintiff took the position that defendant should bear the costs.  The court agreed with defendant and, citing the “well-settled rule in New York that the party seeking discovery bear the cost incurred in its production,” ordered plaintiff to bear the cost of defendant’s production.  Defendant was likewise ordered to bear plaintiff’s production costs.