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Commercial Litigation and Arbitration

New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
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Electronic Discovery — Vendor-Created Quagmire

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The Federal Rules of Civil Procedure and the Zubulake-driven case law frequently require parties to retain forensic electronic discovery experts. These vendors, though, can create nightmares (which, frankly, we’re quite capable of doing without expert assistance). In PSEG Power New York, Inc. v. Alberici Constructors, Inc., 2007 U.S. Dist. LEXIS 66767 (N.D.N.Y. Sept. 7, 2007), Plaintiff PSEG produced emails without the attachments which were referenced as being a part of the emails, as a result of ‛a technical glitch occurred whereby numerous emails were ‘divorced’ from their attachments ... at the interface between the different software used by PSEG and the vendor when reducing the documents in a form that could be reviewed by counsel.“ The raw data was not lost, but re-marrying the attachments to the emails would be costly. Proposals and counterproposals flew back and forth; ‛ the Court proposed a protective order in order to maintain PSEG's proprietary and confidential information, yet PSEG persisted in rejecting [Defendant] Alberici's proposal.“ The defendant established the relevance of the attachments to the Court’s satisfaction. The Court observed that ‛discovery production is rarely perfect or ideal, yet this discovery quagmire created by PSEG's vendor falls woefully short of comporting with the spirit of Rule 34.“ Magistrate Judge Randolph F. Treece went through the following calculus in determining how to apportion the costs of rectification:

“Under the discovery rules, the presumption is that the responding party must bear the expense of complying with discovery requests.“ Oppenheimer Fund [v. Sanders], 437 U.S. [340] at 358 [(1978)] (quoted in Rowe Entm't, Inc. v. William Morris Agency, Inc., 205 F.R.D. 421, 428 (S.D.N.Y. 2002). Such presumption has been the case where electronic discovery is prevalent. Zubulake v. USB Warburg LLC, 217 F.R.D. 309, 316 (S.D.N.Y. 2003) (quoting Oppenheimer Fund, 437 U.S. at 358). But such a presumption may place an undue burden or cost upon the responding party, especially when it comes to electronic discovery. In addressing electronic discovery and the rising cost to produce, common law has crafted a cost shifting scheme which is based upon FED. R. CIV. P. 26(c). See Rowe Entm't Inc. v. William Morris Agency, Inc., 205 F.R.D. at 428-29; & Zublake v. USB Warburg LLC, 217 F.R.D. 317-18. [Brackets in original deleted.]

Held, Plaintiff PSEG must produce the attachments, in hard copy if it wishes or electronically. But, if the latter, ‛we suggest if PSEG pursues this approach it should employ Alberici's vendor whose cost was one-fifth of PSEG's vendor.“ This is the first meaningful disincentive I’ve seen to the submission by the party resisting discovery of bloated estimates of the cost of accessing data.

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New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

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