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Technology Today: 'Peskoff,' Cost-Shifting and Accessible Data
June 26, 2007 Full PDF
Litigation partners Chris Boehning and Dan Toal's article, "'Peskoff,' Cost-Shifting and Accessible Data" appeared in the June 26 New York Law Journal. The article discusses a recent opinion by Magistrate Judge Facciola in Peskoff v. Faber concerning the propriety of shifting the costs of e-discovery from the responding to the requesting party. The opinion states that "it cannot be argued that a party should ever be relieved of its obligation to produce accessible data merely because it may take time and effort to find what is necessary." According to Chris and Dan, the sources the judge relied upon "provide a dubious foundation for a supposed per se rule prohibiting cost-shifting when accessible data is sought." The authors also note that "it appears that the more reasonable reading of both precedent and the federal rules is that judges retain the discretion provided to them by Rules 26(b)(2)(C) and 26(c) to ensure that discovery requests do not impose an 'undue burden or expense' on the responding party and that judges therefore may order cost-shifting, regardless of the nature of the documents requested." Associate Aaron Crowell assisted in the preparation of the article.