Everyone is familiar with the long-standing rule that, ordinarily at least, the party responding to a discovery request is responsible for response costs. However, when the responding party would be subject to “undue burden or expense,” some or all of the costs may be shifted to the requesting party. The expense of complying with requests for electronically stored information (ESI) has made cost-shifting an increasingly frequent feature of discovery.

In Surplus Source Group v. Mid America Engine, the plaintiff served the defendant with requests for production of documents, including records stored electronically. The defendant searched its files and produced responsive documents. Plaintiff claimed that the production was incomplete. Defense counsel requested additional information from plaintiff so a second ESI search could be conducted. Plaintiff’s counsel responded by summarizing supposed shortcomings with the original search based on a discussion with the firm that conducted the search.

Counsel for the defendant asked plaintiff to provide search terms that would permit a more comprehensive search. Plaintiff’s counsel submitted a list of proposed search terms. However, the search had already been conducted. After receiving documents identified in this search, plaintiff moved to compel discovery of additional material. Defendant maintained that the production was complete.

As the responding party, the defendant was presumptively responsible for the cost of searching for and producing documents responsive to the request. The Court noted that the defendant had demonstrated a “persistent willingness” to design an ESI search that would yield the requested documents, if they in fact existed. Weeks before the second search, the defendant asked the plaintiff to provide search terms. Had the plaintiff done so, the search could have been conducted using those terms.

Because the documents plaintiff requested were critical to resolution of a material issue in the litigation, the Court’s solution was to order the defendant to conduct a third search using the search terms provided by the plaintiff, but to condition the search on plaintiff’s willingness to pay the costs, up to the amount defendant spent in conducting the second search. If the expense of the third search exceeded the cost of the second search, then the defendant would be responsible for the excess.

The decision to order cost shifting reflected the Court’s belief that, had the plaintiff been diligent in providing the search terms, no third search would have been necessary. So plaintiff would ultimately bear the expense of the second search, which would not have taken place except for plaintiff’s delay in providing the defendant with the appropriate parameters for the search.

More typically, cost shifting is a factor when the scope of discovery requested results in excessive costs for the responding party or when electronically stored information is “not reasonably accessible.” This illustrates that a requesting party’s failure to cooperate with the responding party to limit the expense of searching for and identifying electronically stored information can also be a proper basis for cost shifting.

Pat McGrath