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E-discovery: Potential cost shifting for document review

Adair v. EQT Production Co. considers the cost of reviewing ESI when deciding if cost-shifting is appropriate

Courts will often take into consideration the burden placed on a party that is asked to identify, review and produce electronic discovery. Under Federal Rule of Civil Procedure 26, a party may avoid the production of responsive electronically stored information (ESI) if it is able to demonstrate that the information being sought is “not reasonably accessible because of undue burden or cost.”

Under Rule 26(b)(2)(C), the court weighs “the burden or expense of the proposed discovery” against “its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.”

Contributing Author

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Martin O'Hara

Martin J. O’Hara is principal and vice chair in the Litigation & Dispute Resolution group at Chicago-based Much Shelist, and represents clients on commercial...

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