Wednesday, October 21, 2009
Professor Patrick Connors (Albany) has posted Which Party Pays the Costs of Document Disclosure?, 29 Pace L. Rev. 441 (2009) on SSRN. Here's the abstract:
The disclosure of electronically stored information has become an integral part of litigation in the twenty-first century; accordingly, the concomitant costs of document production have significantly increased. CPLR Article 31 does not expressly state which party is responsible for the costs of production incurred in response to a demand for "documents or any things." This article explores the development of a questionable rule cited by several New York State tribunals in allocating the costs of document disclosure, while suggesting that the courts adhere to CPLR Article 31's more flexible approach.
In Lipco Elec. Corp. v. ASG Consulting Corp, the New York Supreme Court concluded that "the party seeking discovery should incur the costs incurred in the production of discovery material." However, this rule limits the inherent flexibility of Article 31, and is neither supported by the text of the CPLR, nor by the case law cited in the opinion. This article respectfully submits that the disclosure process will function more efficiently and fairly without a general rule requiring the party seeking "documents or any things" to bear the costs of production. Parties should be encouraged to discuss disclosure costs as early as possible, and request a protective order from the court if necessary.