Case Law

Court Orders Partial Cost-Shifting, with Plaintiff’s Counsel to Bear ESI Production Costs for Lack of “Meaningful Meet-and-Confer Sessions”

New York

Bailey v. Brookdale Univ. Hosp., 2017 U.S. Dist. LEXIS 93093 (E.D.N.Y. June 16, 2017) In this employment discrimination case, the plaintiff claimed that the freely negotiated ESI agreement between his counsel and the defendants, which was approved by the court, was no longer feasible because the data production costs would cause economic hardship. In evaluating the plaintiff’s request, the court considered cost-shifting to protect the plaintiff from undue burden or expense. For cost-shifting to occur, the data must be in an inaccessible format, which the court found, along with sufficient proof of economic hardship, was not established by the plaintiff. Although cost-shifting was not granted for the aforementioned reasons, the court found that the ESI agreement was improperly executed, drawn for use in a corporate setting as opposed to a single plaintiff. The court could reach no other conclusion except that the plaintiff's counsel did not engage in meaningful discussions with his client regarding the terms of the proposed agreement and what costs might be incurred by producing the information in the format the defendants sought. Likewise, it further appeared to the court that plaintiff's counsel did not engage in a meaningful meet-and-confer session with opposing counsel, nor thoroughly review the ESI agreement. The court did not find sufficient grounds to cancel the agreement, and instead ordered partial cost-shifting, requiring the defendants to bear 40% of discovery costs and plaintiff’s counsel, rather than the plaintiff himself, to bear the rest.

Keywords: unduly burdensome, cost-shifting, meet and confer