Because the Court Concluded Plaintiff’s Counsel Failed to Engage in Meaningful Meet and Confer, Court Orders Counsel (not the Plaintiff) to Bear the Costs of Production
August 30, 2017
In this single-plaintiff employment discrimination case (Bailey v. Brookdale Univ. Hosp., 2017 U.S. Dist. LEXIS 93093 (E.D.N.Y. June 16, 2017)), counsel for the parties purportedly met and conferred as directed by the Court and, thereafter, entered into an ESI agreement (“Agreement”). The Agreement was presented to the Court and represented to be the product of mutual negotiation. As a result, the Court So-Ordered the Agreement and its terms.
During discovery, Bailey advised the Court that he was no longer able to comply with the Agreement because the data production costs would cause an economic hardship. Specifically, he claimed the cost of production – estimated at $2,000-$3,000 – was unduly burdensome in light of his personal financial situation, notwithstanding the Agreement. At the Court’s request, Bailey submitted an affidavit estimating the cost of production and that such a cost would inflict a “severe financial hardship” on him given that he earned approximately $90,000 annually and was the sole provider for his family of five. In evaluating Bailey’s grievance, the Eastern District considered cost-shifting to protect Bailey from incurring an undue burden or expense. For cost-shifting to be properly granted, however, there must be sufficient proof of economic hardship and evidence that the requested data is inaccessible. The Court found neither was established by Bailey. Nonetheless, the Court found that the Agreement proposed by Defendants was of a type, “typically utilized in a more complex litigation involving multiple parties and corporate entities” and had no applicability to a single plaintiff. As a result, the Court concluded that Bailey’s counsel did not engage in meaningful discussions with his client regarding the terms of the proposed Agreement and what costs might be incurred by producing the information in the format the defendants sought. Likewise, it further appeared to the Court that Bailey’s counsel did not engage in a meaningful meet-and-confer session with opposing counsel, and did not thoroughly review the Agreement prior to signing it.
The Court did not find sufficient grounds to terminate the Agreement, and instead ordered partial cost-shifting [so that Defendants received the form of production they negotiated for], requiring the defendants to bear 40% of discovery costs and Bailey’s counsel, rather than Bailey himself, to bear the remaining 60%.
This case serves as an important reminder of counsels’ obligation to engage in good faith in all aspects of the discovery process – including negotiating an ESI production protocol. Here, the Court was unwilling to revise the Agreement, and instead required Bailey’s counsel to abide by the terms of the Agreement and pay for the production. This case also serves as an important reminder of our duty, as lawyers, to be competent in the law and the technological world in which we practice. Indeed, as attorneys practicing in today’s ever-increasingly electronic world, we must remain abreast of the intricacies involved in electronic production and the costs associated with that ESI. (See earlier blogs discussing duty of competence)