Who Pays the Cost Associated with Electronic Discovery?

Although the wife sought fees in the amount of $15,000 for the computer expert’s services, the court denied that request, noting that under the CPLR, the party seeking discovery should incur the costs in the production of discovery material, departing from the federal rule.[2]  Significantly, however, the court left the door open for cost allocation at the time of trial and, further, directed the husband to be responsible for the expenses of his own experts who are present to oversee the cloning process.[3]

In another case, where a litigant seeking to challenge the validity of a prenuptial agreement in the context of estate litigation sought electronic discovery from the law firm which prepared the agreement, the court ordered the law firm to select the forensic computer expert and notify the litigant of the cost for services, thereafter that litigant was to notify the law firm whether or not they wished to proceed with the electronic discovery, being the party responsible for the costs.[4]
Based upon the foregoing, it seems clear that the party seeking the electronic discovery will be responsible for the cost, at least initially.  This could operate as an insurmountable burden to some litigants and have a chilling effect on seeking such discovery.
[1] Lipco Elec. Corp. v. ASG Consulting Corp, 4 Misc3d 1019(A), 798 NYS2d 345 (Sup. Ct., ____ Co., 2004).
[2] Etzion v. Etzion, 7 Misc3d 940, 796 NYS2d 844 (Sup. Ct., Nassau Co., 2005).
[3] Id.
[4] In Re Maura, 17 Misc3d 237, 842 NYS2d 851 (Surr. Ct., Nassau Co., 2007).

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Cynthia J Tippins's picture
Harris, Conway & Donovan, PLLC