N.Y. Appellate Court Ruling Brings Clarity to Cost-Shifting in E-Discovery

“The court held that ‘it is the producing party that is to bear the cost of the searching for, retrieving, and producing documents, including electronically stored information,” subject to reallocation upon a proper showing. . . To reduce such expense, the 1st Department has advised that the first step is to seek a protective order. If the results of such motion fails to satisfactorily reduce e-discovery costs by sufficiently narrowing the ESI required to be produced, the next step would be for the motion court to consider the equitable factors set out in Zubulake v UBS Warburg, LLC todetermine whether to ‘shift,’ in whole or in part, the cost of searching for, retrieving, and/or producing ESI to the requesting party. The 1st
Department, in its ruling, took into account that plaintiff, often the requesting party seeking discovery, would not be able to afford ESI discovery if it had to bear the burden of paying for such expense.”