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Mark A. Berman Mark A. Berman

Who will pay for e-discovery expenses will often inform a litigation strategy, and recent case law provides litigators with guidance on the allocation of e-discovery costs. Litigators seeking the production of electronically stored information (ESI) need to appreciate up front that non-party e-discovery expenses, including, significantly, attorney review time and vendor costs, may have to be paid by the requesting party as set out in Walt Disney Co. v. Peerenboom, 2019 N.Y. Misc. LEXIS 337, 2019 NY Slip Op 30181(U) (Sup. Ct. N.Y. Co. Jan. 17, 2019). Also opposing counsel’s attorney time in analyzing an ESI production “do-over” ultimately may have to be paid by the producing party as noted in 255 Butler Assoc. v. 255 Butler, 2019 N.Y. Misc. LEXIS 629, 2019 NY Slip Op 30372(U) (Sup. Ct. Kings Co. Feb. 19, 2019). If a party is having difficulty producing ESI that should be in its possession, custody or control, as suggested in Park v. Song, 2019 N.Y. Misc. LEXIS 4243, 2019 NY Slip Op 32329(U) (Sup. Ct. N.Y. Co. July 30, 2019), it can seek to obtain such ESI from non-parties, but the requesting party needs to be prepared to potentially reimburse the non-party for expenses associated with such production. Who will pay for a court approved third-party data mining company or an expert in information technology in order to examine email accounts and the circumstances under which ESI may have been retained or deleted, as Vasquez-Santos v. Mathew, 168 A.D.3d 587 (1st Dep’t 2019) and Brandsway Hospitality v. Delshah Capital, 73 A.D.3d 457, 2019 NY Slip Op 04483 (1st Dep’t June 6, 2019), must be taken into account when an application seeking court approval of same is sought.

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