Post Process

Everything to do with E-discovery & ESI

Case Blurb: Cason-Merenda; Cost-Shifting Motions Should be Brought before Production, not After

Posted by rjbiii on July 19, 2008

I am persuaded that the instant motion [to allocate 50% of Producing Party’s cost to Requesting Party] is untimely in two respects. First, the courts Scheduling Order of April 23, 2007 provides, in pertinent part, that “[a]ll motions … for protective orders … must be filed within 14 days of receipt or notice of such disputed discovery.” Second, the provisions of Fed.R .Civ.P. 26(b)(2)(B) and 26(c) plainly contemplate that a motion for protective relief (including cost shifting) is to be brought before the court in advance of the undue burden, cost or expense from which protection is sought.
[…]
The Rule [26(b)(2)(B)], if it is to be sensible and useful, must be read as a means of avoiding undue burden or cost, rather than simply distributing it. Indeed, Fed.R.Civ.P. 1 provides that the Rules are to be “construed and administered to secure the just, speedy and inexpensive determination of every action and proceeding.” (Emphasis added).

This interpretation is further reinforced by Fed.R.Civ.P. 26(b) (2)(C)(iii) which provides that the court must limit the frequency or extent of discovery otherwise allowed by the rules if it determines that “the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the party’s resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.” (Emphasis added). Again the clear objective is the avoidance of undue cost rather than merely the apportionment of it.
[…]
On the theory that the information in question was not inaccessible within the meaning of Rule 26(b), [Requesting Party] invokes the court’s broad authority to protect a party from “undue burden or expense” under Rule 26(c).
[…]
The rule provides, in pertinent part, that “[t]he court may, for good cause, issue an order to protect a party or person from … undue burden or expense, including one or more of the following:
(A) Forbidding the disclosure or discovery;
(B) Specifying terms, including time and place, for the disclosure or discovery;
(C) Prescribing a discovery method other than the one selected by the party seeking discovery;
(D) Forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;
Fed.R.Civ.P. 26(c)(1). The clear import of the language employed is that the court has wide discretion to prevent undue burden or expense.

Cason-Merenda v. Detroit Med. Ctr., 2008 WL 2714239 (E.D. Mich. July 7, 2008 )

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