Cost Shifting Ordered Due to Inadequate Meet and Confer

Discovery is not about gamesmanship, and parties are expected to engage in meaningful negotiation about the terms of discovery agreements. That is the message from Judge A. Kathleen Tomlinson of the Eastern District of New York, who recently ordered cost shifting when parties failed to meaningfully meet and confer about their electronically stored information (ESI) agreement. The decision is remarkable, because it orders cost shifting in a case where there is no claim that the discovery sought is unreasonable in scope or unnecessary to resolve the claims in the dispute. The court did not analyze and weigh the proportionality factors in Rule 26, which might have resulted in a more nuanced ruling. While serving as a valuable reminder of the importance of meet and confers in the discovery process, the decision sets a potentially dangerous precedent that parties who object to the expense of discovery that is completely reasonable in scope and necessary to resolve matters in