Bailey v. Brookdale University Hospital Medical Center et al

Filing 38

ORDER re 34 Letter filed by Carlos Ortiz, Brookdale University Hospital Medical Center, 33 Affidavit filed by Lloyd Bailey. SEE ATTACHED ORDER for details. Ordered by Magistrate Judge A. Kathleen Tomlinson on 6/16/2017. (Roman, Joshua)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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LLOYD BAILEY,
Plaintiff,

MEMORANDUM
AND ORDER

-againstBROOKDALE UNIVERSITY HOSPITAL
MEDICAL CENTER and CARLOS ORTIZ,

CV 16-2195 (ADS) (AKT)

Defendants.
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A. KATHLEEN TOMLINSON, Magistrate Judge:
I.

BACKGROUND
On May 3, 2016, Plaintiff Lloyd Bailey (“Plaintiff” or “Bailey”) commenced the instant

action against Brookdale University Medical Center (“Brookdale”) and Carlos Ortiz (“Ortiz”)
(collectively, the “Defendants”) seeking damages based upon Defendants’ violation of Title VII
of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq., 42 U.S.C. § 1983, the
Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., the New York State
Human Rights Law (“NYSHRL”), New York Executive Law §§ 290 et seq. and the New York
City Human Rights Law (“NYCHRL”). See generally Complaint (“Compl.”) [DE 1].
The Court conducted an Initial Conference with the parties in accordance with Rule 26(f)
of the Federal Rules of Civil Procedure on August 18, 2016. DE 20. Specifically, the Court
pointed out that
[t]he parties have met and conferred and have defined the
parameters of the electronically stored information (“ESI”) which
may be relevant in this case. I am now directing counsel to have a
further meet-and-confer to reach an agreement on the method by
which electronically stored information (“ESI”) shall be
produced in this case. The Court expects that discussion to include
issues such as the custodians who should be included, what search
terms are to be utilized if necessary, etc. Under Rule 26, the

requesting party has the right to demand the manner in which the
production takes place. For example, if the requesting party wishes
to have the materials produced in the traditional manner in
hardcopy, that is fine. If the requesting party wants the material
produced on a disc in some type of searchable software format
(e.g., .tiff, .pst, .pdf, native format, etc.), that is fine as well.
However the parties are directed to reduce their agreement to a
writing, with specific details as to the manner of production for all
parties. Counsel are to file their letter agreement, executed by all
counsel, on ECF no later than September 30, 2016 advising me of
what agreement/ procedure has been put in place, and the specific
details of such agreement.
Id. ¶ 6. Thereafter, on September 30, 2016, the parties submitted a fully executed ESI
Agreement for the Court’s review. DE 23. The Court “so ordered” the parties’ ESI Agreement
on October 4, 2016. DE 25.
On January 13, 2017, the parties took part in the Court’s required Discovery Status
Conference. DE 31. During that conference, an issue arose concerning the parties’ ESI
Agreement. See id. Specifically, the Court stated that
[n]otwithstanding the fact that the parties previously entered into
an ESI agreement, which the Court “so ordered” on October 4,
2016, plaintiff’s counsel now seeks to “undo” various provisions of
that agreement. Attorney Gabor argued that it would be “unduly
burdensome and costly for the sole plaintiff ... To produce the ESI
in the manner as set forth in the Order.” DE 28.
The Court pointed out that the ESI agreement had been freely
negotiated over a more than reasonable time frame given by the
Court. Those provisions, negotiated by Attorney Tand, who was
also in the courtroom, had not changed in any way. Mr. Tand had
ample opportunity to discuss and negotiate those terms with
opposing counsel before freely signing the agreement and
submitting it to the Court. A case of buyer’s remorse on the part of
the plaintiff at this juncture is unpersuasive.
However, the Court directed plaintiff’s counsel to review the
parameters of the ESI agreement with an outside vendor and obtain
a written estimate of the cost involved in making the production.
Likewise, if plaintiff is claiming this is an economic hardship, then
he must provide an affidavit detailing the reasons for asserting a
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claim of economic hardship. Defendants’ counsel offered to
contact their ESI vendor which might provide Plaintiff with the
benefit of the same discounted rate that Defendants have arranged
with this vendor. The Court recommended that the parties speak
further about this prospect, noting that it is entirely up to Plaintiff’s
attorneys whether they wish to pursue this gesture. In any event,
Plaintiff is to directed to provide the estimate and/or the affidavit
to the Court within ten (10) days.
Id. ¶ 1.
In accordance with the Court’s Order, on January 20, 2017, Plaintiff submitted an
Affidavit of Economic Hardship (“Bailey Aff.”) [DE 33]. The Affidavit states, in relevant part,
that: (1) “ESI discovery will cost approximately $2,000.00 to $3,000.00;” and (2) the expense
would cause Plaintiff to experience “severe financial hardship” since he is “the only working
member of [his] family.” Plaintiff added that although he earns “roughly $90,000 per year,” he
has expenses (including child support, daycare, mortgage payment and transportation expenses)
which leave him “with approximately $1650 per month to provide for my wife and three
children.” Bailey Aff. ¶ 3.
On January 26, 2017, Defendants filed opposition to the relief sought in the Bailey
Affidavit. DE 34. Specifically, Defendants assert that: (1) “[t]he law is clear, that the producing
party (Plaintiff) should bear the cost of his ESI production” (citing cases); (2) the estimate of
$2,000 to $3,000 that “Plaintiff received from [the] outside discovery vendor LDiscovery . . . is
very reasonable;” (3) “Plaintiff is not ‘economically disadvantaged’” since “his affidavit [states]
that he is earning a salary of ‘roughly $90,000” and therefore he “can pay this reasonable cost;”
(4) “Plaintiff commenced the lawsuit [and therefore] he should produce the ESI that has been put
in issue due to his own claims;” and (5) the cost should not be shifted to Defendants in light of
the fact that “Brookdale [is a] non-profit hospital operating in a low income neighborhood [and
it] has already had to bear its own costs here.” Id.
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In response, Plaintiff reiterates that his affidavit “clearly sets forth that for him to expend
between $2,000.00 and $3,000.00 for the production of ESI discovery for his emails would most
certainly pose an extreme hardship” since, although Plaintiff “earns approximately $90,000.00
per annum, [he] is the sole support for his family.” DE 35. In addition, Plaintiff maintains that
“it is highly offensive that Defendants refer to the cost of the ESI . . . as ‘minimal’ and ‘very
reasonable’” since such a position concerns “a subjective matter.” Id.
II.

APPLICABLE LAW
Rule 34(a) of the Federal Rules of Civil Procedure delineates the type of items that a

requesting party may “inspect, copy, test or sample” when such items are in the “responding
party’s possession, custody, or control[.]” Fed. R. Civ. P. 34(a). The overall scope of Rule 34 is
broad and includes “information that is fixed in a tangible form and to information that is stored
in a medium from which it can be retrieved and examined. At the same time, a Rule 34 request
for production of ‘documents’ should be understood to encompass, and the response should
include, electronically stored information. . . .” Fed. R. Civ. P. 34 (Advisory Committee Notes
to 2006 Amendments). Rule 34(b)(2)(E) governs the manner in which production of documents
or electronically stored information (“ESI”) must be made. The Rule states as follows:
(E) Producing the Documents or Electronically Stored
Information. Unless otherwise stipulated or ordered by the court,
these procedures apply to producing documents or electronically
stored information:
(i) A party must produce documents as they are kept in the usual
course of business or must organize and label them to correspond
to the categories in the request;
(ii) If a request does not specify a form for producing
electronically stored information, a party must produce it in a form
or forms in which it is ordinarily maintained or in a reasonably
usable form or forms; and

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(iii) A party need not produce the same electronically stored
information in more than one form.
Fed. R. Civ. P. 34(b)(2)(E). By it terms, Rule 34(b)(2)(E)(i) and (ii), concerning the production
of documents or ESI respectively, permits the producing party, unless otherwise ordered by the
Court, to choose which method to produce the items sought by the requesting party. See Rule
34(b)(2)(E)(i) (“A party must produce documents as they are kept in the usual course of business
or must organize and label them to correspond to the categories in the request.”) (emphasis
added); Rule 34(b)(2)(E)(ii) (“a party must produce [ESI] in a form or forms in which it is
ordinarily maintained or in a reasonably usable form or forms”) (emphasis added). Thus, “under
the provisions of Rule 34(b)(2), a responding party clearly controls the manner in which
production will occur, and specifically which of the two prescribed methods of production will
be employed.” Pass & Seymour, Inc. v. Hubbell Inc., 255 F.R.D. 331, 334 (N.D.N.Y. 2008); see
Hill v. Stewart, No. 10CV538S, 2011 WL 4439445, at *5 (W.D.N.Y. Sept. 23, 2011)
(“[D]efendants are not obligated under the Federal Rules to organize their records to suit
plaintiff’s discovery demands and plaintiff cites no authority to the contrary. Rule 34(b)(2)(E)
gives the responding party the option either to produce the documents in the manner they usually
keep the records or produce them in the categories sought; that rule does not require the
responding party to alter their record keeping to meet the movant’s discovery categories.”).
With regard to the cost of production, the general rule is that the responding party bears
all such costs. See Rowe Entm’t, Inc. v. William Morris Agency, Inc., 205 F.R.D. 421, 429
(S.D.N.Y. 2002) (recognizing the “well-established legal principle . . . that the responding party
will pay the expenses of production”); Novick v. AXA Network, LLC, No. 07 CIV. 7767, 2013
WL 5338427, at *3 (S.D.N.Y. Sept. 24, 2013) (“The presumption is that the responding party
must bear the expense of complying with discovery requests, but he may invoke the district
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court’s discretion under Rule 26(c) to grant orders protecting him from ‘undue burden or
expense’ in doing so, including orders conditioning discovery on the requesting party’s payment
of the costs of discovery.”) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358, 98
S. Ct. 2380, 2393, 57 L. Ed. 2d 253 (1978)); Wood v. Capital One Servs., LLC, No. 09-CV-1445,
2011 WL 2154279, at *4 (N.D.N.Y. Apr. 15, 2011) (“Ordinarily the presumption is that the party
whose ESI is being sought during discovery must bear the expense of complying with the
discovery request, just as is the case with regard to any other more traditional discovery.”);
Quinby v. WestLB AG, 245 F.R.D. 94, 101 (S.D.N.Y. 2006) (same); Hallmark v. Cohen &
Slamowitz, LLP, No. 11-CV-842, 2016 WL 1128494, at *3 (W.D.N.Y. Mar. 23, 2016) (“[I]n
federal civil discovery it is presumed that a responding party will bear the expense of
production.”).
Notwithstanding operation of the general rule, a court may, under limited circumstances,
consider “cost-shifting” of such production expenses to the requesting party. See Wood, 2011
WL 2154279, at *4 (recognizing that “[i]n some cases, however, it is appropriate to shift all or
some costs of producing discovery to the requesting party. . .”). However, such a deviation
“should be considered only when electronic discovery imposes an ‘undue burden or expense’ on
the responding party.” Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 318 (S.D.N.Y. 2003)
(emphasis in original); see Quinby, 245 F.R.D. at 101; Novick, 2013 WL 5338427, at *4; Wood,
2011 WL 2154279, at *4 (cost-shifting appropriate only where “compliance demands would
impose undue burden or expense on a responding party”). Likewise, “whether production of
documents is unduly burdensome or expensive turns primarily on whether it is kept in an
accessible or inaccessible format (a distinction that corresponds closely to the expense of
production).” Zubulake, 217 F.R.D. at 318 (emphasis in original); see Novick, 2013 WL

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5338427, at *4. It follows that “[f]or data that is kept in an accessible format, the usual rules of
discovery apply: the responding party should pay the costs of producing responsive data. A
court should consider cost-shifting only when electronic data is relatively inaccessible, such as in
backup tapes.” Zubulake, 217 F.R.D. at 324 (emphasis in original); Novick, 2013 WL 5338427,
at *4. Generally, “[d]ata that is ‘accessible’ is stored in a readily usable format that ‘does need to
be restored or otherwise manipulated to be usable.’ Conversely, data that is ‘inaccessible’ is not
readily useable and must be restored to an accessible state before the data is usable.” Quinby,
245 F.R.D. at 102 (quoting Zubulake, 217 F.R.D. at 320). In the event a threshold determination
is made that the electronic data sought is “relatively inaccessible,” the court in Zubulake set forth
the following factors which should be considered:
1. The extent to which the request is specifically tailored to discover relevant
information;
2. The availability of such information from other sources;
3. The total cost of production, compared to the amount in controversy;
4. The total cost of production, compared to the resources available to each party;
5. The relative ability of each party to control costs and its incentive to do so;
6. The importance of the issues at stake in the litigation; and
7. The relative benefits to the parties of obtaining the information.
Zubulake, 217 F.R.D. at 322; see Wood, 2011 WL 2154279, at *4; Quinby, 245 F.R.D. at 102.
III.

DISCUSSION
Initially, the Court points out that the record does not contain any facts indicating that the

ESI being sought is “inaccessible.” Indeed, the Bailey Affidavit states only that the $2,000 to
$3,000 estimated cost of ESI production — based upon the methods set forth in the parties’ ESI
Agreement — would “create a severe financial hardship” in light of the fact that Plaintiff is the
“sole source of revenue for [his] family” and is responsible for all monthly expenses. See
generally Bailey Aff. However, as stated above, whether ESI production is unduly burdensome
or expensive so as to justify cost-shifting generally turns directly upon the accessibility or
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inaccessibility of the data being sought. See Zubulake, 217 F.R.D. at 318; Novick, 2013 WL
5338427, at *4. Here, the Court has not been presented with any facts to conclude that the ESI
being sought by Defendants is inaccessible. Thus, it necessarily follows that such production
would not be so unduly burdensome or expensive to justify deviating from the general rule
requiring the producing party to bear the expense of production. See, e.g., Novick, 2013 WL
5338427, at *4 (“[T]he Court finds that cost-shifting does not apply in this circumstance; that is
so because . . . cost-shifting does not apply where electronic data is kept in an accessible format,
. . . and the defendants do not contend that the data they searched were kept in an inaccessible
format. Thus, under the Zubulake standard, the defendants failed to show that cost-shifting is
appropriate because they did not establish that the production at issue was unduly burdensome or
expensive, that is, that the data were kept in an inaccessible format.”) (internal citations omitted).
Notwithstanding the above, this is not the end of the inquiry in light of the specifics facts
and circumstances of this case. Indeed, the scope and parameters of ESI “should be a partydriven process.” Aguilar v. Immigration and Customs Enforcement Div. of U.S. Dept. of
Homeland Sec., 255 F.R.D. 350, 358 (S.D.N.Y. 2008); see Saliga v. Chemtura Corp., No.
3:12CV832, 2013 WL 6182227, at *1 (D. Conn. Nov. 25, 2013). Therefore, “[d]iscussions
about ESI should begin early in the case. Rule 26(f) requires that the parties meet and confer to
develop a discovery plan that discusses ‘any issues about disclosure or discovery of [ESI],
including the form or forms in which it should be produced.’” Saliga, 2013 WL 6182227, at *1
(quoting Fed. R. Civ. P. 26(f)(3)(C)). Such “[c]ooperation ... requires ... that counsel adequately
prepare prior to conferring with opposing counsel to identify custodians and likely sources of
relevant ESI, and the steps and costs required to access that information. It requires disclosure
and dialogue on the parameters of preservation.” Trusz v. UBS Realty Inv’rs LLC, No. 3:09-CV-

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268, 2010 WL 3583064, at *4 (D. Conn. Sept. 7, 2010), on reconsideration in part, No. 3:09 CV
268, 2011 WL 121651 (D. Conn. Jan. 13, 2011), and opinion vacated in part on reconsideration,
No. 3:09 CV 268, 2011 WL 124504 (D. Conn. Jan. 13, 2011). It follows that cooperative efforts
“between counsel regarding the production of electronically stored information allows the parties
to save money, maintain greater control over the dispersal of information, maintain goodwill
with courts, and generally get to the litigation’s merits at the earliest practicable time.” Saliga,
2013 WL 6182227, at *1; see Aguilar, 255 F.R.D. at 358 (“[I]dentification of disputes over the
forms of production may help avoid the expense and delay of searches or productions using
inappropriate forms.” Thus, at the outset of any litigation, the parties should discuss whether the
production of metadata is appropriate and attempt to resolve the issue without court
intervention.”). To be sure, such cooperation in generating and reviewing ESI discovery
parameters is therefore of paramount importance since it is the “parties, not [the] courts, [who
must] [ ] make the tough choices [concerning the scope of ESI] that fit[s] the particular discovery
needs of a case.” Aguilar, 255 F.R.D. at 359.
Despite this guidance, it is clear that the above procedures were not adequately followed
in this case. Although the parties did present a fully executed ESI Agreement to the Court,
which the Court reviewed and ultimately “so ordered,” the Agreement itself, although
undoubtedly thorough, appears to have been drawn for use in corporate settings as opposed to the
single plaintiff employment discrimination case at issue here. After engaging in a further review
as to the scope and depth of the ESI Agreement, the Court can reach no other conclusion except
that Plaintiff’s counsel did not engage in meaningful discussions with his client regarding the
terms of the proposed agreement and what costs might be incurred by producing the information
in the format Defendants sought. Likewise, it further appears that Plaintiff’s counsel did not

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engage in a meaningful meet-and-confer session with opposing counsel concerning this
Agreement nor did he thoroughly review the Agreement (or consider its ramifications) prior to
signing it. Indeed, as is the case in many ESI disputes which come before the Court, the
provisions concerning the overall scope and methods of Plaintiff’s ESI production would likely
have been the subject of zealous negotiation and compromise had Plaintiff’s counsel undertaken
a more substantive review. As it stands, Plaintiff’s counsel has placed his client in the position
of having to abide by an Agreement, which, in the current context, appears overly complex in
light of the straightforward subject matter and claims involved here.
The Court points out that “[a] party who voluntarily chose [an] attorney as his
representative in [an] action . . . cannot . . . avoid the consequences of the acts or omissions of
this freely selected agent.” Hoodho v. Holder, 558 F.3d 184, 192 (2d Cir. 2009) (internal
quotations and citation omitted); Gomez v. City of New York, 805 F.3d 419, 424 (2d Cir. 2015)
(same). However, this principle must be balanced against the Court’s over-arching responsibility
“to ensure a level playing field for both sides.” Cornell Univ. v. Hewlett–Packard Co., 2007 WL
4302778 (N.D.N.Y. July 23, 2007); see Phelan v. Cambell, No. 9:10–CV–540, 2012 WL
407161, at *2 (N.D.N.Y. Jan. 19, 2012), report and recommendation adopted, 2012 WL 407147
(N.D.N.Y. Feb. 8, 2012), aff’d, 507 Fed. App’x 14 (2d Cir. 2013). (“Discovery is not a matter of
gamesmanship nor conducted like a game of chess.”); see also Fields-D’Arpino v. Rest.
Associates, Inc., 39 F. Supp. 2d 412, 418 (S.D.N.Y. 1999) (employing “prophylactic measures ...
to level the playing field in this action and ensure that plaintiff’s claims will be fairly
adjudicated.”). Here, Defendants drafted and presented an ESI Agreement which is typically
utilized in a more complex litigation involving multiple parties and corporate entities rather than
a single plaintiff employment discrimination action. The manner and means of ESI production is

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set forth in largely technical and precise terms — which clearly has an impact on the overall
costs of the production of such information. In addition, there is no indication in the record that
Defendants are amenable to considering an alternative format for the production which could
prove less expensive. The Court understands that Defendants would like to have the materials
presented in a manner which makes their search capabilities easier and perhaps more efficient.
That is a rational goal. But the Defendants’ aspirations are not the only issue the Court must
consider.
The Court does not find that sufficient grounds exist to rescind the Agreement. However,
to the extent the Defendants continue to insist on the production being made to the letter of the
requirements/formatting they set forth in the Agreement, the Court finds that employing a
measure of partial cost-shifting is appropriate here. See Fields-D’Arpino, 39 F. Supp. 2d at 418
(employing “prophylactic measures ... to level the playing field in this action and ensure that
plaintiff’s claims will be fairly adjudicated.”). Specifically, the Court directs that 40% of the
production costs for Plaintiff’s ESI shall be borne by Defendants while 60% shall be assessed to
Plaintiff. Given the circumstances set forth in this Memorandum, the Court finds that fairness
dictates the Plaintiff’s costs should be borne by Plaintiff’s counsel rather than Plaintiff himself.
IV.

CONCLUSION
For the foregoing reasons, the costs of Plaintiff’s ESI production will be allocated as

follows: 40% to Defendants and 60% to Plaintiff. The production is to be completed forthwith.
Plaintiff’s counsel shall provide the Court with a letter from the vendor immediately (within five
days of entry of this Order) stating the length of time the production will take. Once that
information is obtained, the Court will set a further conference date with the parties.

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SO ORDERED.

Dated: Central Islip, New York
June 16, 2017
/s/ A. Kathleen Tomlinson
A. KATHLEEN TOMLINSON
United States Magistrate Judge

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