January 15, 2019

January 15, 2019

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January 14, 2019

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Who Pays for the Production of Electronic Discovery? SPM Resorts, Inc. v. Diamond Resorts Management, Inc.

We are often asked when defending litigation, "Who pays for the production of electronic discovery?"  The response depends on the forum, however, frequently the answer has been, "YOU do."  Occasionally, the parties agree to split the cost of the production, including that of an outside vendor if appropriate.  More frequently the result was objections and motions to compel followed by hearings (read: "expensive") leading to a result with which no one was happy.

Last week, Florida's Fifth District Court of Appeal in SPM Resorts, Inc. v. Diamond Resorts Management, Inc. 2011 WL 2650893, __ So. 3d __ (Fla. 5th DCA 2011), held that the cost of an outside vendor should be borne by the requesting party, not the responding party.  The plaintiff furnished a request for production of documents, including electronic discovery, and sought to have 50% of the costs of an outside vendor reimbursed by the defendant.  The Court unambiguously rejected the position and held that if the requesting party necessitates an outside vendor to assist in procuring electronic data, the requesting party should pay for the entire cost of the vendor.  It often makes sense to retain a vendor to assist in producing documents, but cost splitting will not be unilaterally mandated by the state courts in Florida.

As such, both parties in a dispute should be mindful of the costs associated with the document production they seek.  More than ever, proportionality and cooperation are the guides by which litigation should be steered with early conferences among parties, their attorneys and IT personnel as a best practice.

©Lowndes, Drosdick, Doster, Kantor & Reed, PA, 2019. All rights reserved.


About this Author

James E. Walson, commercial, litigation, attorney, real estate, Lowndes, law fir

Partner James Walson focuses on commercial litigation, particularly real property disputes. James has litigated matters involving contracts, title insurance liability, commercial landlord / tenant matters, easements, fraud, deed warranties, boundary disputes, adverse possession, lien priority and access rights throughout the State of Florida. He has conducted appeals before the Second District Court of Appeal and the Fifth District Court of Appeal. James routinely represents title insurance companies, commercial landlords, property owners, and lenders in commercial litigation matters.

Drew Sorrell, commercial, litigation, employment, tort, attorney, Lowndes, law
Partner and Chair, Privacy & eDiscovery Group

Drew Sorrell began his career as a law clerk to Senior United States District Judge John H. Moore, II in Jacksonville, Florida. After clerking, he practiced in New York City with a large international firm, primarily in the area of litigation. Subsequently, Drew returned to Florida and is now a litigation partner with the firm. 

Drew’s practice focuses on commercial (including complex eDiscovery and technology issues), employment, and significant tort litigation, as well as related appellate litigation. He has argued to the United States Court of Appeal for the Eleventh Circuit, at the federal level, as well as the Fifth District Court of Appeal at the state level. He is admitted to practice before all of the Florida state and federal courts, as well as the United States Court of Appeals for the Eleventh Circuit, the Southern District of New York, the state courts of New York and the District of Columbia courts.

Drew is a frequent speaker and writer on the topics of eDiscovery and technology/Internet law and speaker on business ethics.  Drew leads the firm's eDiscovery team while maintaining his traditional litigation practice.

Brendan Lynch, private landowner, real estate, tax, attorney, Lowndes, law firm

Senior associate Brendan Lynch represents private landowners in issues of eminent domain and condemnation, as well as ad valorem tax appeals (property taxes). He is also a member of the firm's eDiscovery practice, and has assisted clients in preparing document retention and destruction policies in advance of litigation.