Electronic Discovery New York State Courts
In Lipco Elec. Corp., citing Schroeder v. Centro Pariso Tropical, 233 AD2d 314, 649 NYS2d 820 (2nd Dept 1996) and Rubin v. Alamo Rent-a-Car, 190 AD2d 661, 593 NYS2d 284 (2nd Dept 1993), plaintiff sought electronic discovery and defendant objected to the production, arguing, among other things, that the cost would be substantial.
The court stated that "cost shifting of electronic discovery is not an issue in New York since the courts have held that, under the CPLR, the party seeking discovery should incur the costs incurred in the production of discovery material" (2004 NY Slip Op 50967[U], at 8).
Yet the cases above each trace back to Rosado v. Mercedes-Benz of N. Am. (103 AD2d 395, 480 NYS2d 124 [2d Dept 1984]). Rosado supports a much narrower holding than the cited cases imply.
There, the Court dealt with whether a party should be compelled to produce a translation of a German language document.
Relying on First Circuit precedent, the Court applied the rule that "each party should shoulder the initial burden of financing his own suit, and based upon such a principle, it is the party seeking discovery of documents who should pay the cost of their translation" (Rosado, 103 AD2d at 398 [interpreting CPLR 3114 as opposed to CPLR 3103]).