Not Just For Corporations: E-Discovery Production Woes Hit Home

Mancino v. Fingar Ins. Agency, 2014 N.Y. Misc. LEXIS 30 (N.Y. Misc. 2014)

In this action for breach of contract, negligent misrepresentation, and professional negligence, plaintiffs (insurance policy holders) sued defendant (insurance company) over insufficient home insurance policies procured by defendant after plaintiffs’ home was burglarized.

The policy included language stating that defendant would provide “full replacement value” of all items stolen from plaintiffs’ apartment. Plaintiffs filed suit over $114,000 they said defendant refused to pay in promised coverage.

After receiving a hard copy production from defendant during discovery, plaintiffs filed a motion to compel production of  “electronically stored information (“ESI”) in native form with TIFF images at Fingar’s expense in order to view document metadata.” Plaintiffs stated that acquiring metadata was necessary to determine the created dates and edit dates of certain insurance policy documents.

Defendant opposed and countered that metadata was inconsequential in the lawsuit. Defendant also claimed that TIFFing would be a “laborious task” and that the $3,500 native file format production cost should shift to plaintiffs.

The court cited CPLR § 3101(a), specifically that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action.” In the instant case, the court held that all but one of the documents in question were material and necessary.

The court rejected defendant’s claim that plaintiffs’ request “seeks information which is irrelevant or confidential, or is overbroad and unduly burdensome” and ruled in favor of plaintiffs and demanded defendant produce the requested documents in native form with TIFF images.

Moving to the issue of cost-shifting, the court cited seven factors:

1. [t]he extent to which the request is specifically tailored to discover relevant information; 2. [t]he availability of such information from other sources; 3. [t]he total cost of production, compared to the amount in controversy; 4. [t]he total cost of production, compared to the resources available to each party; 5. [t]he relative ability of each party to control costs and its incentive to do so; 6. [t]he importance of the issues at stake in the litigation; and 7. [t]he relative benefits to the parties of obtaining the information.”

Because no basis to shift was found and the producing party generally bears the costs of discovery, the court held that defendant should pay all document production-related costs. Elijah’s state-of-the-art e-discovery technology and consulting services provide complete and timely document production and support. For more information about Elijah’s e-discovery solutions please visit, for general information visit, and to contact one of our ESI experts call 866-354-5240 or email