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computer forensics
Cost Allocation

Henry v. Quicken Loans, Inc., "Quicken II", 2008 U.S. Dist. LEXIS 11417 (E.D. Mich. Feb. 15, 2008).
Defendants were ordered to pay additional costs associated with reviewing their email for privileged document, as the initial review utilized the first names of legal personnel and resulted in these matches being removed. The issue with this manner of searching is that it also resulted in matches to non-legal personnel with the same first names being removed as well.

Committee Concerning Community Improvement v. City of Modesto, 2007 U.S. Dist. LEXIS 94328 (E.D. Cal. Dec. 11, 2007).
The court determined that only some costs associated with production of electronic documents could be awarded to the winning party. These costs included those that were associated with setting up an online repository so that documents could be reviewed, however, the time it took to upload documents into this repository and review them were not awarded.

Ex parte Cooper Tire & Rubber Co., 2007 Ala. LEXIS 229 (Ala. Oct. 26, 2007).
The Alabama Supreme Court decided that Fed. R. Civ. P. 26(b)(2)(B) and Wiginton factors should be applied when determining whether parties must respond to requests for electronic information.

PSEG Power N.Y., Inc. v. Alberici Constructors, Inc., 2007 U.S. Dist. LEXIS 66767 (N.D.N.Y. Sept. 7, 2007).
Plaintiffs initially produced 3,000 email messages without their corresponding attachments, however, they were ordered to reproduce this information properly, at their own cost, which was estimated to be between $40,000 and $200,000.

Haka v. Lincoln County, 2007 U.S. Dist. LEXIS 64480 (W.D. Wisc. Aug. 29, 2007).
The court ruled that an incremental process for identifying relevant electronic evidence would be undertaken, beginning with Plaintiff providing a specific set of keywords to be used against 4 terabytes of Defendant's electronic information. The court ordered that this initial process would be shared among the parties, however, Defendant would be responsible for paying the costs associated with a privilege review.

Peskoff v. Faber, 2007 U.S. Dist. LEXIS 62595 (D.D.C. Aug. 27, 2007).
Using the recently amended Fed. R. Civ. P. 26(b)(2)(C), the court ordered counsel for both parties to work together to obtain cost information associated with the forensic examination of computer systems and one server from qualified computer forensic experts.

Grant v. Homier Distributing Co., Inc., U.S. LEXIS 63083 (N.D. Ind. Aug. 24, 2007).
Defendant did not object to Plaintiff's request for electronic discovery and was thus ordered to pay for the cost of production. The court did permit Defendant to chose the form of production for any future discovery.

Pipefitters Local No. 636 Pension Fund v. Mercer Human Resource Consulting, Inc., 2007 U.S. Dist. LEXIS 52169 (E.D. Mich. Jul. 19, 2007).
The court reversed the magistrate's order, in which Plaintiff was to pay for the collection of electronic data, as the court found that the magistrate did not utilize Fed. R. Civ. P. 26(b)(2)(B) to first determine whether the defendant could reasonably access the electronic data in question.

Guy Chemical Company, Inc. v. Romaco AG, 2007 U.S. Dist. LEXIS 37636 (N.D. Ind. May 22, 2007).
The court utilized Fed. R. Civ. P. 45(d) rather than the Zubulake cost-sharing factors in this matter in which electronic data was requested from a non-party to determine that the Defendant should pay for the discovery.

Nederhiser v. Foxworth, 2007 U.S. Dist. LEXIS 34196 (D. Ore. May 7, 2007).
The court found that costs associated with discovery were not taxable and would not be reimbursed.

IO Group, Inc. v. Veoh Networks, Inc., 2007 U.S. Dist. LEXIS 31639 (N.D. Cal. Apr. 13, 2007).
Defendant requested reimbursement for costs associated with production of electronic data; however, Defendant was denied such reimbursement, as they did not show that the data was "inaccessible".

In re Veeco Instruments, Inc. Securities Litigation, 2007 U.S. Dist. LEXIS 23926 (S.D.N.Y. Apr. 2, 2007).
Plaintiffs requested Defendants produce data that was stored on backup tapes and the court, utilizing the seven factors in the Advisory Committee Notes to the 2006 amendment to Rule 26, determined that Defendants must restored the backup tapes. The court also stated that Zubulake cost-shifting analysis would be performed after Defendants restored the data and informed the court of the associated costs.

Georgia Department of Agriculture v. Griffin Industries, 2007 Ga. App. LEXIS 306 (Ga. Ct. App. Mar. 19, 2007).
Plaintiff was granted a hearing pertaining to cost-sharing prior to being ordered to restore email from backup tapes.

United States ex rel. Parikh v. Premera Blue Cross, 2007 U.S. Dist. LEXIS 23213 (S.D. Ohio Mar. 16, 2007).
The court granted Plaintiff's request that a third party be ordered to retrieve archived email, however, the third party could not show that this request was burdensome, thus Plaintiff was not ordered pay the associated costs.

AAB Joint Venture v. United States, 2007 U.S. Claims LEXIS 56 (U.S. Ct. Claims Feb. 28, 2007).
Defendant's duty to produce documents was not reduced due to their decision to raise the cost of production by placing electronic information on backup tapes.

Peskoff v. Faber, "Peskoff II", 2007 U.S. Dist. LEXIS 11623 (D.D.C. Feb. 21, 2007).
Shifting the costs of production to the requesting party did not occur, as the producing party could not show that data was "inaccessible" under the amended Fed. R. Civ. P. 26(b)(2)(B).

W.E. Aubuchon Co. v. Benefirst, LLC, 2007 U.S. Dist. LEXIS 44574 (D. Mass. Feb. 6, 2007).
Utilizing the amended Rule 26(b)(2)(C), Plaintiff proved that "inaccessible" documents should be produced by and paid for by Defendant as they were required to prove liability and damages.

Apsley v. Boeing Co., 2007 U.S. Dist. LEXIS 5144 (D. Kan. Jan. 17, 2007).
The court ordered that a hearing be held to determine cost sharing or whether a more efficient manner to identify relevant electronic information could be found based on Plaintiff's motion that Defendant's review the files of 550 individuals utilizing extremely broad keywords.

Quinby v. WestLB AG, 2007 U.S. Dist. LEXIS 2955 (S.D.N.Y. Jan. 4, 2007).
Plaintiff was instructed to pay for a portion of defendant's costs associated with restoring backup tapes, as plaintiff was interested in reviewing a specific employee's email. However, once it was determined that defendant was required to restore these backup tapes to produce other employees' email, plaintiff's portion of the cost was reduced.

Analog Devices, Inc. v. Michalski, 2006 NCBC LEXIS 16 (N.C. Super. Ct. Nov. 1, 2006).
The North Carolina Business Court utilized N.C. R. Civ. P. 26 to determine that the cost of production should be split equally between plaintiff and defendant.

Automed Technologies, Inc. v. Knapp Logistics & Automation, Inc., 2006 U.S. Dist. LEXIS 76610 (N.D. Ga. Oct. 19, 2006).
Costs associated with scanning documents were awarded to the winning party pursuant to 28 U.S.C.S. 1920(4).

Ponca Tribe of Indians of Oklahoma v. Continental Carbon Co., 2006 U.S. Dist. LEXIS 74225 (W.D. Okla. Oct. 11, 2006).
Plaintiff requested permission to image or download defendant's data, however, the court denied this unless plaintiff was willing to purchase required software, pay for programming costs, and post a bond in the event that damage to defendant's data occurred.

Delta Financial Corporation v. Morrison, 2006 N.Y. Misc. Lexis 2232 (S. Ct. N.Y. August 17, 2006).
Utilizing the backup tape search procedure from Zubulake I, the court permitted the requesting party to search samples of data from the responding party's backup tapes as a test run, however, the requesting party was responsible for all costs associated with this test run, including attorney fees associated with privilege review.

Clever View Investments, Ltd. v. Oshatz, 2006 U.S. Dist. LEXIS 5006 (S.D.N.Y. Feb. 8, 2006).
Defendants were ordered to pay 40%: of costs associated with copying documents, as plaintiffs were able to show that the same information that would be copied was available through other means.

Experian Information Solutions, Inc. v. I-Centrix, 2005 U.S. Dist. LEXIS 42868 (N.D. Ill. Jul. 21, 2005).
Plaintiff demanded that metadata be produced from defendant's computer systems and the court ordered that an independent expert perform this production at plaintiff's expense.

In re Automotive Refinishing Paint Antitrust Litigation, 2005 U.S. Dist. LEXIS 22353 (E.D. Pa. Jun. 29, 2005).
A non-party was ordered to respond to a discovery request made by plaintiff, however, they did not have to produce documents that were available through other means and plaintiff was required to compensate them for producing this data.

Quinby v. WestLB AG,, 2006 U.S. Dist. LEXIS 64531 (S.D.N.Y. Sept. 5, 2006).
Plaintiff was ordered to reimburse defendant for 30% of their costs for producing email associated with one of its former employees. However, plaintiff was not ordered to pay for costs associated with defendant producing email for other employees, as defendant had placed this data in an inaccessible format on backup tapes after they were aware that this data would be discoverable.

J.C. Associates v. Fidelity & Guaranty Ins. Co., 2006 U.S. Dist. LEXIS 32919 (D.D.C. May 25, 2006).
The court ordered that a sample of documents be converted into a searchable format, that a search for keywords be performed, and that a statement of costs for performing this search be created so that the court could use the marginal utility test to determine the need for any further searches to be performed.

AAB Joint Venture v. United States, 2007 U.S. Claims LEXIS 56 (U.S. Ct. Claims Feb. 28, 2007).
Defendant's duty to produce documents was not reduced due to their decision to raise the cost of production by placing electronic information on backup tapes.

Peskoff v. Faber, "Peskoff II", 2007 U.S. Dist. LEXIS 11623 (D.D.C. Feb. 21, 2007).
Shifting the costs of production to the requesting party did not occur, as the producing party could not show that data was "inaccessible" under the amended Fed. R. Civ. P. 26(b)(2)(B).

Semsroth v. City of Wichita, 2006 U.S. Dist. LEXIS 83363 (D. Kan. Nov. 15, 2006).
Shifting defendant's cost of $2,500 to plaintiff was not warranted based on Zubulake and post-December 1, 2006 rule change Advisory Committee Notes.

Ukiah Automotive Investments v. Mitsubishi Motors of North America, Inc., 2006 U.S. Dist. LEXIS 33352 (N.D. Cal. May 17, 2006).
Plaintiff was ordered to produce documents in electronic form from a computer that they claimed was no longer in working order, even though they had produced the documents in paper format. Plaintiff was told that, if they could not produce the documents electronically themselves, they would have to hire a third-party to do so.

Creative Science Systems, Inc. v. Forex Capital Markets, LLC, 2006 U.S. Dist. LEXIS 20116 (N.D. Cal. Apr. 4, 2006).
Defendant reinstalled operating systems on their computers, violating the document preservation order, so the court ordered defendant to bear the cost of analyzing the servers in question.

Tilberg v. Next Mgmt. Co., "Tilberg I", 2005 U.S. Dist. LEXIS 24892 (S.D.N.Y. Oct. 24, 2005).
Defendant was ordered by the court to make a server that had crashed during previous inspections available for additional evaluation by the plaintiff's computer forensic expert, although the expert discovery deadlines had passed.

In re Automotive Refinishing Paint Antitrust Litigation, 2005 U.S. Dist. LEXIS 22353 (E.D. Pa. Jun. 29, 2005).
Plaintiffs in a class action requested that a non-party produce documents and the non-party was ordered to respond. The court also ruled that the plaintiffs had to compensate the non-party for associated costs and that the non-party was not required to produce documents that were otherwise available to the plaintiffs.

Etzion v. Etzion, 2005 N.Y. Misc. LEXIS 519 (N.Y. Sup. Ct., Nassau Cty. Feb. 17, 2005).
The court ruled in this divorce case that the wife was entitled to discovery of her husband's companies' financial records, based on the New York rule that the requesting party pays for the production of requested documents. The court also ruled that a third-party referee would "clone" and evaluate the computer hard drives, but that the wife would not be required to post a bond in the event that damage was caused to the hard drives arising from such evaluation.

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