Don’t Argue Gmail is Not Reasonably Accessible

Can a producing party argue for cost-shifting to the defendant based on proportionality for the production of work-related emails on a plaintiff’s gmail account? Owens v. Clear Wireless LLC, 2014 U.S. Dist. LEXIS 26698, 4-6 (D. Minn. Mar. 3, 2014).

Short answer is no, because the emails are not inaccessible to the producing party.

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The general rule in over the cost of producing discovery falls on the producing party. Owens, at *4, citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358, 98 S. Ct. 2380, 57 L. Ed. 2d 253 (1978).

Discovery can be limited if “the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.” Owens, at *5, citing Fed. R. Civ. P. 26(b)(2)(C)(iii). Cost-shifting can be imposed if the data sought by the producing party is not reasonably accessible. Id, citing Zubulake v. UBS Warburg LLC, 216 F.R.D. 280, 283-84 (S.D.N.Y. 2003).

The Plaintiff’s emails in a gmail account were accessible by the Plaintiff. Data must be not reasonably accessible in order for any cost-shifting to be considered. Owens, at *6.

Bow Tie Thoughts 

Email messages stored in a Cloud, whether it is Yahoo, Gmail, or some other service provider, are not “not reasonably accessible” to the producing party.

Computer forensic experts have determined multiple ways to capture cloud-based email. This can include having the email messages downloaded to a computer in Outlook, to applications that preserve the email from the cloud. Just because a lawyer needs to retain someone to perform the work, does not make the email “not reasonably accessible.”

Going Dutch on eDiscovery: Hosted Review Agreement Trumps Prevailing Party Cost-Shifting

In a patent dispute, the parties agreed to use a online review platform for the production of email and to share the costs.  The prevailing party in the lawsuit won on having their hosting costs of $234,702.43 shifted to the opposing party.  The losing party appealed and the Court of Appeals reversed the cost-shifting award. Synopsys, Inc. v. Ricoh Co. (In re Ricoh Co.), 2011 U.S. App. LEXIS 23495, 9-12 (Fed. Cir. Nov. 23, 2011).

The use of the online review database was born out of a production dispute.  The Producing Party initially proposed producing email messages as 1) a hard copy production of the e-mails; 2) converting them to TIFF format, or 3) loading them onto a local terminal at its offices and allowing the Requesting Party counsel to review them on site only. In re Ricoh Co., at *5.

The Requesting Party [very rightly] objected to the Producing Party’s form of production proposals and sought the email produced in native file format.  In re Ricoh Co., at *5.

The Requesting Party recommended a hosted review provider and to divide the hosting costs between the litigants.  In re Ricoh Co., at *5-6.

After the conclusion of the lawsuit, the Producing Party argued that because the hosted review platform was used for the email production, the full hosting costs were taxable.  In re Ricoh Co., at *6.

The Court agreed that the use of the online review platform was taxable under 28 U.S.C. 1920(4), because the “database was used as a means of document production in this case.” In re Ricoh Co., at *7.

However, there was a very BIG however: the joint contract with the hosted service provider that contained a cost-sharing provision.

The Court cited to a case from 1975, which held that it was “proper” to “exclude from costs awarded certain charges because ‘[t]he parties had agreed to share the expense for [that] service.'” In re Ricoh Co., at *10, citing Thomas v. Duralite Co., 524 F.2d 577, 590 (3d Cir. 1975).

The Court of Appeals zeroed in on the 14-page joint hosting contract that included a cost-sharing agreement between the parties.  In re Ricoh Co., at *11.  As the Court of Appeals stated:

The parties characterized this agreement as a cost-sharing agreement, but never indicated that the cost-sharing was only temporary. Communications between the parties after the agreement with Stratify was executed continued to reflect the cost-sharing agreement.

There is no indication in any of the extensive communications between the parties that they intended this cost-sharing agreement to be anything other than a final settlement of the cost of the Stratify database.

 If the cost-sharing agreement were designed to be only an interim agreement, it seems likely that there would have been some indication to that effect in either the communications between counsel or the agreement with Stratify. Under these circumstances, the parties’ agreement is best interpreted as agreeing to a final, not an interim, sharing of costs.

In re Ricoh Co., at *11-12.

The Court held the hosting agreement was controlling and reversed the award of $234,702.43 for hosting costs.

Bow Tie Thoughts

It is good that courts recognize hosting fees for an online review platform as recoverable costs.  This opinion puts parties and service providers on notice to watch out for the terms in a shared hosting agreement.  If there is a possibility a party may seek costs for a shared hosted review database, a clause should be put into the agreement about cost-shifting for a prevailing party.  This should be a Rule 26(f) meet and confer topic if a shared-hosting platform is being considered.

Online review databases have many benefits.  In large multi-party lawsuits, the volume of ESI to review is often too large for a law firm to maintain.  Having the data hosted by a third-party allows the law firm to focus on the subject matter of the case, opposed to investing in both the hardware, software and expertise to effectively set-up the discovery for review.

Large law firms are not the only ones using online review software.

Hosted solutions can also allow judges to have access to the discovery if the case so requires.  In El-Amin v. George Wash. Univ., 2008 U.S. Dist. LEXIS 85009 (D.D.C. Oct. 22, 2008), Judge Facciola ordered the parties to consider using a hosted review platform that could “easily used by counsel and by the Court.”  For more, see Court Orders For Hosted Review Solutions: When the Judge Wants to See the Discovery Too.

Highlighting the advantages of an online review platform, Access Data has been very gracious to host my high school mock trial team’s fictional case in Case Vantage.

The students are using Case Vantage to review the witness statements; identify facts supporting the causes of actions/defenses; recognize evidentiary issues; determine hearsay objections and the corresponding hearsay exceptions. Issue codes were created for the different charges against the fictional defendant based on the assigned jury instructions.

The students are also posting outlines of their pre-trial arguments, opening statements, closing arguments, and witness examinations for me to review online.

Whether an online review platform is being used in a complex case subject to a protective order or by high school students learning how to build a case, there are many advantages to using online hosted review.