Court Orders Sharing of Non-Party's Discovery Costs, Cites Lack of "Spirit of Cooperation or Efficiency" as "Controlling Factor"

DeGeer v. Gillis, 2010 WL 5096563 (N.D. Ill. Dec. 8, 2010)

Defendants and non-party Huron Consulting Services, LLC could not agree on the proper course of discovery. After protracted communications consisting of accusations and demands, defendants sought to compel Huron to conduct additional searches for responsive ESI. The court found that some additional searching was warranted and ordered counsel to meet and confer in person to establish the proper scope. Citing the parties’ failure to cooperate as a “controlling factor” as to cost-shifting, the court ordered the parties to split the costs, with one exception.

Defendants subpoenaed Huron seeking information relevant to ongoing litigation. Huron complied, in part, but refused, for example, to restore certain back up tapes without cost-shifting and repeatedly declined to share the details of its searching with defendants. Defendants, for their part, refused to provide Huron with search terms, despite repeated requests. The details of the dispute are rather protracted. Suffice it to say, even after Huron provided defendants with a general description of its database and search terms (pursuant to court order), no agreement could be reached regarding the proper scope of discovery and judcial intervention became necessary.

Following its acknowledgement that non-parties are to be protected from unduly burdensome discovery, and highlighting the need for cooperation and early attention to e-discovery issues (attention which was lacking in this case), the court found that additional searching was warranted. The court then turned its attention to the question of cost-shifting and found that some cost-shifting was appropriate:

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Source: ediscoverylaw.com