The Appellate Division, First Department, in U.S. Bank N.A. v. GreenPoint Mtge. Funding Inc.,1 in its second significant decision in the last month addressing issues relating to electronically stored information (ESI),2 answered the following question, and has now provided clarity to the courts and attorneys of this state, as to:
which party is to incur the cost of searching for, retrieving and producing both electronically stored information and physical documents that have been requested as part of the discovery process.
The court held that “it is the producing party that is to bear the cost of the searching for, retrieving, and producing documents, including electronically stored information,” subject to reallocation upon a proper showing. This author discussed the lack of clarity on this issue in its New York Law Journal article titled: “The Case Law Is Unclear as to Who Pays for What?“3
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