Form of Production: Add that Topic to the Meet & Confer Check-List

The Defendants in Specht v. Google, Inc., sought of $21,951.16 for discovery costs.  $17,778.64 of that total was for creating digital versions of the discovery. Specht v. Google, Inc., 2011 U.S. Dist. LEXIS 68968, 9-11 (N.D. Ill. June 27, 2011)

As a general rule, such costs are taxable if the parties have agreed to produce discovery electronically.  Specht, at *9, citing Fast Memory Erase, LLC v. Spansion, Inc., No. 10-C-0481, 2010 U.S. Dist. LEXIS 132025, 2010 WL 5093945, at *5 (N.D. Tex. Nov. 10, 2010).

The Defendants had a significant problem in seeking their costs: There was no evidence the parties agreed to produce discovery electronically.  Specht, at *10.

The best the Defendants could produce was an email that an associate wrote for a partner to review and comment on.  Specht, at *9.

There was no evidence that the draft email had been sent to the Plaintiffs.  Specht, at *9.  Moreover, the draft email did not reference an actual agreement to produce hard copy discovery in electronic format.  Specht, at *9.

The email did reference producing metadata for specific ESI, however, the Court stated that the “Defendant has not adequately documented that an agreement existed between the parties to produce documents electronically.” Specht, at *9-10.

The Court found the $17,778.64 was not recoverable, because the Defendants did not show there was an agreement to produce documents electronically.  Specht, at *10.

Bow Tie Thoughts

This case illustrates the realities of modern litigation. The failure to document an agreement for producing ESI or hard copy documents in electronic format can result in costs for producing discovery denied.  It is a prudent topic to add to a meet and confer “to do” list.

Attorneys should discuss the form of production during the meet and confer process and codify their agreement in a discovery order.  Parties should discuss how databases should be produced, whether hard copy documents are to be scanned and OCR-ed, types of metadata to be produced and how costs should be apportioned.  These are just a few examples of topics for a meet and confer.

Establishing expectations on the above topics can help control litigation costs and put a party in a position of strength if there is a later dispute.