Degeer v. Gillis Examines Factors to be Weighted For Shifting Costs in Third Party Electronic Discovery Disputes.
In Degeer v. Gillis, 2010 U.S. Dist. LEXIS 129745 (N.D. Ill. Dec. 8, 2010), U.S. District Judge Nan R. Nolan examines the obligations of parties and non-parties under Federal Rule of Civil Procedure 45 as it relates to cost-shifting in the e-discovery context.
District Judge Nolan noted that three equitable factors traditionally have been considered when evaluating cost-shifting in the non-party context: (1) whether the non-party has an interest in the outcome of the case; (2) whether the non-party can more readily bear its costs than the requesting party; and (3) whether the litigation is of public importance. However, there is a subsidiary “best practices” inquiry that needs to be considered when dealing with non-party cost-shifting, which involves weighing of these factors: (1) the scope of the request; (2) the invasiveness of the request; (3) the need to separate privileged materials; (4) the non-party’s interest in the litigation; (5) the relative resources of the party versus non-party; (6) the reasonableness of the costs sought; and (7) the public importance of the litigation.
Not surprisingly, the district court found that the controlling factor was the lack of cooperation or efficiency by all participants as far as future cost-sharing. That meant that the party and non-party would share the cost of additional discovery except for one hard drive that had been deleted to avoid production during discovery.
This certainly shows that equities are “front and center” in non-party e-discovery disputes. We would like to thank Virginia P. Henschel, Esq., vice-president of E-discovery affairs of LexisNexis Applied Discovery, for her thoughtful commentary on this case as reported on Applied Discovery’s January 11, 2011 Case Summary Alert.