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Quote of the Day - Spare no expense to save money on this one. - Samuel Goldwyn
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You Want It? You Got It. Now, Pay For It.

Over the years, the general rule has been that the party producing discovery pays to produce it, with some flexibility depending on an array of factors. There have been some recent rulings to the contrary when it comes to electronic discovery.

In fact, a recent California case, Toshiba America Electrical Components v. Sup.Ct. (Lexar Media, Inc.) pretty much drove that nail into the coffin of who pays.

Toshiba produced 20,000 pages of documents (and apparently paid for the production), but Lexar wanted more. It wanted a review of some 800 backup tapes, to the tune of perhaps $1.9 million. Lexar Media said Toshiba had to pay.

Toshiba obviously disagreed, and appealed the trial court's decision that sided with Lexar. The fact that the court of appeals took this case on a writ is especially notable. Discovery issues almost always result in a "thanks, but no thanks" postcard from the court of appeal rejecting the writ.

Section 2031(g) of the California Code of Civil Procedure allows the Court to shift the cost of producing discovery despite the general rule otherwise. The appeals court sent the case back to the trial court with this little warning: "[it] is clear that the demanding party is expected to pay [...] reasonable expense for a necessary translation."

The court also noted that this state rule is based on Federal Rule of Civil Procedure, Rule 34(a), which likewise can result in cost-shifting for expensive discovery.

The moral of the story? Be careful what you ask for. You just might get it.

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Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Thursday, December 09, 2004 at 10:02 Comments Closed (0) |
 
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