Costs partially shifted to requesting party that delayed providing keywords

April 12th, 2009 | By Evan Brown

Surplus Source Group, LLC v. Mid America Engine, Inc., No. 08-049, 2009 WL 961207 (E.D. Tex. April 8, 2009)

Defendant Mid America Engine ran a keyword search on its electronically stored information and produced responsive documents to plaintiff Surplus Source Group. After Surplus Source complained about shortcomings in the production, Mid America asked for information from Surplus Source that would help Mid America conduct a second search. Six weeks later, Surplus Source’s lawyer responded by email, outlining the purported deficiencies. Mid America’s in house counsel replied that same day, asking for particular keywords with which to search. More than two weeks after that, Surplus Source provided those keywords. By that time, however, Mid America had already conducted the second search.

Surplus Source moved to compel Mid America to run a third keyword search using the terms Surplus Search had proposed. The court found that the additional discovery was warranted, but ordered Surplus Source to pay for the third search, up to the amount that the second search cost. Mid America would be responsible for the rest.

Operating under the teaching of Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978), the court recognized that normally “the responding party must bear the expense of complying with discovery requests.” It also recognized its ability to shift the costs of discovery to the requesting party where doing so would protect the responding party from “undue burden or expense.” In this case, the court found that Mid America had “shown a persistent willingness to aide [Surplus Source] in crafting an ESI search that would yield the documents if they do, in fact, exist.” Had Surplus Source provided the search terms to Mid America sooner, the court found, the third search would not have been necessary.

By shifting the costs in this manner, the court did not drastically alter the traditional cost-bearing framework, which requires the responding party to pay. Mid America had paid for the second search, which did not satisfy Surplus Source. But the court believed Surplus Source’s dissatisfaction arose, at least in part, because of its own delay. If the third search was to take place, Surplus Source would pay the amount already incurred by Mid America for the second search. To the extent the third search was more extensive, and therefore, more expensive, Mid America would be responsible for that. In this way, the court cleverly shifted to Surplus Source the portion of duplicate costs occasioned by the delay in supplying keywords.

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