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A Word to the Wise

By Alfred G. Feliu

Who Bears the Cost?

Discovery of electronic communications. Employees generally cannot live without it (if they hope to state a claim), but often cannot afford to pay for it. Employers can generally afford to pay for it, but resent paying to help a plaintiff make his or her case against them. This dilemma is only further exacerbated by the proliferation of electronic communications that has made the discovery of such information very time-consuming and expensive. As Magistrate Judge James C. Francis IV stated in Rowe Entertainment Inc. v. William Morris Agency, Inc., 205 F.R.D. 421, 423 (S.D.N.Y. 2002), modern-day discovery 'is not just about uncovering the truth, but also about how much of the truth the parties can afford to disinter.'

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