J.T. Colby & Company, Inc. et al v. Apple, Inc.

Filing 30

DECLARATION of Bonnie L. Jarrett in Opposition re: 27 MOTION for Thomas C. Morrison, Kimo S. Peluso, Nirav S. Shah and Amy T. Sheehan to Withdraw as Attorney.. Document filed by Apple, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Cendali, Dale)

EXHIBIT B

KIRKLAND &. ELLIS LLP
AND AfflL....TED PMTNUl5HIl'S

601 Lexington A....enue
New York, New York 10022
Dale Cendali
To Call Writer Directly:

(212) 446·4800

(212) 446·4845
dale [e-mail]

www.kirkland.com

Facsimile:
(212) 446·4900

March 26, 2012

By E-mail
Thomas C. Morrison
Manatt, Phelps & Phillips, LLP
7 Times Square
New York, NY 10036

Rc:

J. T Colby & Co.. Inc" cf at. v. Apple Inc., No. 11 elV 4060

Dear Mr. Morrison:
I am writing regarding the hard drive belonging to John Colby and John T. Colby and
Company (the "Hard Drive") that you produced to Apple Inc. ("Apple") on March 23, 2012.
As a preliminary matter, please explain whether Lhe Hard Drive includes electronically
stored information ("EST") ofalllhe Plaintiffs, or only that ofPlainlifI John T. Colby & Co. Tf
the l-Iard Drive docs not contain J. Boylston & Co., Publishers LLC and ipicturebooks LLC's
EST, please produce such Esr immediately.
It appears that the Hard Drive contains 950 GB of data. Based on our prior experiences,
we believe that il may cost approximately $19,000 for an electronic discovery vendor to process
the Hard Drive and run search lerms.
As you know, "the presumption is that the responding party must bear the expense of
complying with discovery requests." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358
(1978); >e' "Is" QUinby v. WestLB AG, 245 F.R.D. 94,101 (S.D.N.Y. 2006); Zubul"ke v. UBS
Warburg LLC, 216 F.R..D. 280, 283 (S.D.N.Y. 2003). The costs of complying with discovery
requests may be shined to the requesting party "only upon motion of the responding party to a
discovery request, and 'for good cause shown. ", Zubulake, 216 F.R.D. at 283. Plaintiffs have
made no such motion, nor is there good cause for cost~shifting in this case.
Specifically, cost-shifting is only appropriate when ESJ is inaccessible. See Fed. R. Civ.
P. 26(b)(2)(B); see also Zubufake, 216 F.R.D. at 291 (noting that ifUBS's ESI had "always been
accessible, there is no question that UI3S would have had to produce the data at its own cost").
In their responses \0 Apple's requests for production, Plaintiffs never asserted that the requests

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Thomas C. Morrison, Esq.
March 26, 2012
Page 2

sought inaccessible ESl. Because Lhe Hard Drive contains accessible E51, Plaintiffs must bear
the costs of producing that ESI.
In addition, Plaintiffs' apparent inability to pay for this litigation is not a reason for
requiring Apple to shoulder the costs of producing Plaintiffs' own documents, a cost that
Plaintiffs knew they would have to incur in order to prosecute their claims. Even plaintiffs who
have been granted in/orilla pauperis status arc required to pay the cosls of discovery. See, e.g.,
Koehl v. Greene, No. 9:06-CY-0478, 2007 WL 4299992, at '3 (N.D.N.Y. Dec. 6, 2007).

We understand thallhe Plaintiffs have had some difficulty in retaining an electronic
discovery vendor. As the Court instructed on February 27. 2012, Apple will "manage rthc]
process" ofrevicwing the Hard Drive. Wc will invoicc you for the costs of that review, which
wc expect to be at lea<;t $19,000.

..,
The foregoing is not intended to be a full and complete recitation of Apple's position, and
Apple hereby expressly reserves, and docs not waive, all of its rights and remedies in connection
with the issues discussed herein.

~

Dale M. Cendali

K&F.221l137S.1

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