Shifting and Sharing the Costs of Preservation and Discovery: How, When and Why

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The preservation and discovery of information, particularly electronically stored information (ESI), can be expensive. Under what circumstances might it be appropriate to depart from the American Rule under which parties bear their own costs in preserving information and responding to discovery requests and adversaries are required to bear or share the costs of preserving or responding? When might costs be shifted or shared as a sanction for litigation misconduct or spoliation? And under what circumstances might the costs incurred by a subpoenaed non-party be shifted or shared?

Cost-sharing and cost-shifting is of importance to retained counsel, in-house counsel, and clients as they struggle with what some commentators bemoan as the increasing cost of compliance with the cost of preservation and discovery. Understanding the circumstances which might allow for cost- shifting or sharing should enable attorneys and parties to prepare – and challenge – motions to shift or share the costs of compliance, either as a party or a subpoenaed non-party.

Educational Objectives:
• Learn the rules that govern requests to shift or share the costs of preservation and discovery.
• Appreciate the circumstances under which a court might or might not be inclined to require a litigant to bear or share the costs of preservation or discovery.
• Find out about the circumstances under which a court might protect a non-party from the costs of preservation and compliance with a subpoena.
• Discover what the states are doing and how the proposed amendments to the Federal Rules of Civil Procedure might impact cost-shifting or sharing and what the Civil Rules Advisory Committee might do next.

Who would benefit most from attending this program?
Attorneys who represent parties in civil litigation and who might request or oppose motions to shift or share the costs of preservation and production; attorneys who represent non-parties who have been subpoenaed and who might request cost-shifting or sharing of the costs of preservation and production in response to the subpoena; in-house counsel and clients, whether parties or subpoenaed non-parties, who seek protection from the costs of preservation and responding to discovery requests.



Ron Hedges is a special master, arbitrator, and mediator working with e-discovery and privilege issues. He served as a United States Magistrate Judge in the District of New Jersey from 1986 to 2007. He is a member of The Sedona Conference® Advisory Board and a member of the Advisory Board of the Advanced E-Discovery Institute of Georgetown University Law Center. He also teaches at Rutgers School of Law-Newark. Mr. Hedges is author of, among other publications, Discovery of Electronically Stored Information: Surveying the Legal Landscape (BNA: 2007) and a co-author of Managing Discovery of Electronic Information: A Pocket Guide for Judges (Federal Judicial Center: 2007)


Hon. Craig B. Shaffer has been a United States Magistrate Judge for the District of Colorado since January 2001. Magistrate Judge Shaffer graduated from the College of William and Mary and earned a juris doctor cum laude from Tulane University’s School of Law. He has served as a Navy judge advocate, a senior trial attorney with the United States Department of Justice, and in private practice as a partner in two different Denver law firms. He is also a member of the Advisory Board for the Sedona Conference and has been a contributor to the University of Denver's Institute for the Advancement of the American Legal System. Judge Shaffer is a frequent presenter at conferences and seminars addressing electronic discovery, including presentations organized by the Sedona Conference, Colorado's Faculty of Federal Advocates, the Colorado Chapter of the Association of Corporate Counsel, Bloomberg BNA, the ABA's Labor and Employment Law Section, the Rocky Mountain Intellectual Property Institute, and Georgetown University Law Center’s Advanced E-Discovery Institute.


Annika K. Martin is a partner at the New York office of Lieff Cabraser Heimann & Bernstein, LLP and has represented plaintiffs in the fields of environmental law, mass torts, consumer protection, and antitrust and intellectual property. She has worked to represent a broad range of clients and has worked on cases including the class-action lawsuit against BP, Halliburton, and others over the damages caused by the Deepwater Horizon spill, litigation concerning ignition switch defects in GM vehicles, and class action litigation against Honda over losses due to defective window regulators and BMW over faulty navigation systems. Ms. Martin has also represented clients in the DeBeers, Credit Card, Comcast, and Air Cargo in antitrust actions. Ms. Martin serves as Co-Vice Chair of the Class Action Litigation Group and on several committees of the American Association for Justice and on the Consumer Affairs Committee of the NYC Bar and is an active member of the Sedona Conference working groups 1 (Electronic Discovery Retention and Production) and 8 (Mass Torts and Punitive Damages).

Ms. Martin earned a J.D. with Honors from the Gould School of Law at the University of Southern California and a Bachelor's Degree in journalism from the Medill School of Journalism, Northwestern University.


Jeane A. Thomas is chair of Crowell & Moring's E-Discovery and Information Management Group and a partner in the firm’s Antitrust Group. In her role with the E-Discovery practice, Ms. Thomas has managed many types of E-Discovery matters in both government investigations and private litigation. She regularly counsels clients on Litigation Readiness Planning, including the development and application of effective information management policies and legal hold practices, as well as E-Discovery response plans. Ms. Thomas is a participating member of The Sedona Conference Working Group 1 on Electronic Document Retention and Production and Working Group 6 on International Electronic Information Management, Discovery and Disclosure, and co-chairs Working Group 1's Healthcare Team. She is also a member of the Advisory Board and Faculty of the Georgetown University Law Center Advanced Institute for E-Discovery. She regularly speaks and writes on U.S. and transnational E-Discovery issues. Ms. Thomas earned a B.A., summa cum laude, from Ohio State University and a J.D., cum laude, from Georgetown University Law Center.


Ken Withers is the Deputy Executive Director for The Sedona Conference®, an Arizona-based non-profit law and policy think tank which has been on the forefront of issues involving complex litigation, intellectual property, and antitrust law. Since 1989, he has published several widely-distributed papers on electronic discovery, hosted a popular website on electronic discovery and electronic records management issues, and given presentations at more than 300 conferences and workshops for legal, records management, and industry audiences. Mr. Withers’ most recent publications are "Ephemeral Data and the Duty to Preserve Discoverable Electronically Stored Information," 37 U. Balt. L. R. 349 (2008) and "Living Daily with Weekley Homes," Texas State Bar Advocate, Vol. 51 (Summer 2010), 23. From 1999 through 2005, he was a Senior Education Attorney at the Federal Judicial Center in Washington D.C., where he developed Internet-based distance learning programs for the federal judiciary concentrating on issues of technology and the administration of justice. Mr. Withers contributed to several well-known FJC publications, including the Manual for Complex Litigation, Fourth Edition (2004), Effective Use of Courtroom Technology (2001), and the Civil Litigation Management Manual (2001).