Key Takeaway
New York court rules on discovery costs burden in litigation - requestee pays first, with limited cost-shifting options available.
U.S. Bank N.A. v GreenPoint Mtge. Funding, Inc., 2012 NY Slip Op 01515 (1st Dept. 2012)
Cost of discovery. I sue you. I demand a lot of discovery. You bear the burden,in the first instance, to pay the costs of the sought after information. Then, you are stuck engaging in: “The more prudent course of action to first make a motion to limit or strike the discovery requests initiated by plaintiff that it found to be overbroad, irrelevant, or unduly burdensome. If, following the resolution of that motion, defendant still believed the costs associated with searching for, retrieving, and producing ESI to be prohibitive, defendant could then file a motion for the costs to be shifted to plaintiff.”
Read the decision. This is the cliff-notes version. Perhaps in commercial litigation, this might make sense. But, where you are dealing with parties where the inequities in resources are glaring, this seems to really be unfair. The bright side is that the winner can tax the costs at the end. The end, is usually resolved through settlement. So, this remedy (which you can find in the opinion) is really illusory. While this case deals with ESI (electronic discovery), its application is probably far beyond the facts of this case.
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