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Bailey v. Brookdale University Hospital Medical Center

United States District Court, E.D. New York

June 16, 2017

LLOYD BAILEY, Plaintiff,


          A. KATHLEEN TOMLINSON United States 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 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.

         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 . . ...

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