Silverman v. Shaoul, 30 Misc. 3d 491

Defendants move to compel plaintiffs to pay costs of electronic discovery; plaintiffs oppose.
Defendants rely on New York law that the party seeking discovery bears the cost of production.
Disputed data were not deleted or archived; rather, they were stored interspersed with other entities' documents and required processing.
Plaintiffs did not respond to a July 9, 2010 letter seeking production-cost estimates; defendants cite August 2010 emails as implied acquiescence, which the court rejects.
Several authorities are discussed (including Waltzer and Clarendon) to evaluate who should bear electronic discovery costs.
The court denies the request and holds that plaintiffs need not pay for electronic discovery costs.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Who bears e-discovery costs when data is not readily available	Plaintiffs should not bear the costs.	The requesting party should bear the costs.	The court denies shifting costs; data not unduly burdensome and not not readily available.
Effect of plaintiffs' silence on July 9, 2010 regarding costs	Silence cannot be acquiescence absent duty to speak.	Silence plus August emails show agreement to cost-shifting.	Silence not deemed acquiescence; no agreement to pay.
Applicability of cited authorities (Waltzer, Clarendon, etc.) to e-discovery cost allocation	Many authorities support cost-bearing by the producing party when data is not readily available.	The cited cases support shifting costs to the requesting party.	Clarendon supports the general rule; Waltzer supports burden on producer only where appropriate; in this case, costs are not clearly shifted.

Waltzer v. Tradescape & Co., L.L.C., 31 AD3d 302 (1st Dept 2006) (generally, party seeking discovery bears cost, but context matters for e-discovery)
Clarendon Natl. Ins. Co. v. Atlantic Risk Mgmt., Inc., 59 AD3d 284 (1st Dept 2009) (no reason to deviate from rule that each party bears expenses in responding to discovery)