money gavel dollar signCertain decisions from the past year suggest that New York courts addressing requests to shift costs in connection with e-discovery are more inclined to exercise their discretion under Article 31 of the CPLR to limit the scope of the requested e-discovery than they are to shift the costs of such discovery to the requesting party.

Historically, New York courts have held that the party requesting discovery, as opposed to the producing party, should incur the costs associated with the production of the requested discovery material. See Schroeder v. Centro Pariso Tropical, 233 A.D.2d 314 (2d Dep't 1996); Rubin v. Alamo Rent-A-Car, 190 A.D.2d 661 (2d Dep't 1993).

In 2012, however, the First Department, following the practice in the federal courts, held that in the first instance, a producing party, not a requesting party, should bear the cost of production of both electronically stored information (ESI) and physical documents, subject to the exercise of discretion by the IAS court on a proper motion. See U.S. Bank N.A. v. GreenPoint Mtge. Funding, 94 A.D.3d 58 (1st Dep't 2012). The GreenPoint court further held that IAS courts should consider the standards articulated in the seminal case of Zubulake v. USB Warburg, 217 F.R.D 309 (S.D.N.Y. 2003) when exercising such discretion, including the (1) extent to which the discovery request is specifically tailored to discover relevant information; (2) availability of such information from any other sources; (3) total cost of production, compared to the amount in controversy; (4) total cost of production, compared to the resources available to each party; (5) relative ability of each party to control costs and its incentive to do so; (6) importance of the issues at stake in the litigation; and (7) relative benefits to the parties of obtaining the information. These factors, the GreenPoint court held, are not a checklist, but rather should be used "as a guide to the exercise of … discretion in determining whether or not the request constitutes an undue burden or expense on the responding party."