Manhattan, Bronx Courts Require Party Who Produces Discovery to Bear the Cost of Production

The New York Appellate Division, First Department, whose rulings are binding upon state courts in Manhattan and the Bronx, has ruled that the cost of producing discovery should be borne by the party who produces that discovery. The February 28 decision, U.S. Bank National Association v. Greenpoint Mortgage Funding Inc., applies to both physical and electronic documents, and permits courts to shift the cost of the production to the party seeking those documents in the courts’ discretion if a request would be too burdensome to the producing party.

Prior to this decision, there was no clear standard articulated in the statutes governing discovery, including the CPLR. The First Department panel was persuaded by the “strong public policy favoring resolving disputes on their merits,” which would be better served by this more liberal discovery standard, rather deterring plaintiffs from seeking discovery by making them bear the costs.

This ruling adopts the Zubulake standard, used in many federal courts since 2003, including the Southern District of New York, located in Manhattan.

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