In Mikron Industries Inc. v. Hurd Windows & Doors Inc., a breach of contract case, the defendant sought both a protective order and cost-shifting. However, Hurd didn’t show that it had met its obligation under Rule 26(c), which requires that you confer in good faith with your opponent. The judge ruled against the defendants because if you want a protective order or cost-shifting, you must in good faith meet and confer with your opponent. The judge found that the defendants didn’t comply with Rule 26(c) because they didn’t respond to plaintiff’s counsel when it:
“identified specific ‘gaps’ in production and reasonably asked defendants to articulate the foundation for their assertion that unsearched ESI would produce “little additional responsive information.”
The judge added:
“A conversation with opposing counsel does not become a “meet-and-confer” conference simply because a party has attached that label to the discussion.”
You should always get a protective order before responding to an e-discovery request in case you make a mistake and inadvertently (unintentionally) produce privileged information. A protective order, as the name implies, helps protect your claim of privilege if you make that mistake because it’s possible
to waive privilege of documents if you produce them. When you attempt to get the opponent to pay for e-discovery costs, that’s known as cost-shifting.
The court denied the motion for a protective order and cost-shifting.
Lessons to be learned from this case are
Failure to meet and confer in good faith and work with the opposing party can increase your costs and even destroy your case. Even though shifting the burden of cost from one party to another is an accepted practice, Judge Robert S. Lasnik denied a motion to do so because the requesting party failed to meet and confer in good faith.
Complying with the good-faith rule entails a substantive discussion with your opposing party. Specifically, your difficulty in producing responsive ESI, the extent to which you’ve searched ESI to date, and the foundation for your belief that a more thorough search of ESI, including backup tapes, would yield only information that has already been produced.
You need to demonstrate why the requested ESI is not reasonably accessible. You provide sufficient detail to allow the requesting party to evaluate the costs and benefits of searching the requested sources.
Some courts are more willing to sanction parties for failing to participate in e-discovery in good faith. Always be prepared to actively and effectively participate in the discovery process.