IN RE: BARONS MEDIA (2024)

Order, Supreme Court, New York County (Joel M. Cohen, J.), entered on or about July 24, 2023, which granted respondent's motion for reimbursement pursuant to CPLR 3122(d) to the extent of awarding it two-thirds of its claimed expenses ($47,514.60), unanimously affirmed, with costs.  Order, same court and Justice, entered on or about December 27, 2023, which, to the extent appealed from as limited by the briefs, denied petitioner's motion to renew, unanimously affirmed, with costs.

The court providently exercised its discretion in partially granting respondent's motion for reimbursement as a nonparty witness seeking to recover “reasonable production expenses” incurred while producing electronically stored information (ESI) pursuant to a subpoena from petitioner (see CPLR 3122[d];  22 NYCRR 202.70;  Tener v. Cremer, 89 A.D.3d 75, 82, 931 N.Y.S.2d 552 [1st Dept. 2011]).  “Reasonable production costs” may include “reasonable fees charged by outside counsel and e-discovery consultants” for gathering and reviewing documents for relevance and privilege before production, in addition to those charged by vendors involved in the harvesting and storage of ESI (22 NYCRR 202.70, Appendix A, at VIII.B).  Respondent provided a detailed schedule based on invoices submitted by counsel and ESI vendors, which reflected that the costs were largely incurred by the review, organization, and compilation of responsive materials by outside counsel.  Insofar as some of the entries reflect activities associated with withholding materials and that outside counsel's billing rate may have been unreasonable, the court weighed all relevant factors and appropriately determined that respondent was only entitled to recover two-thirds of the claimed expenses.  The fact that petitioner subsequently instituted separate litigation against respondent does not render respondent a party that may not recover production expenses under CPLR 3122(d).

The court providently exercised its discretion in denying petitioner's renewal motion (see CPLR 2221[e][2]).  Petitioner failed to support its application with “new facts or information which could not have been readily and with due diligence made part of the original motion” (Foley v. Roche, 68 A.D.2d 558, 568, 418 N.Y.S.2d 588 [1st Dept. 1979]), and the court properly concluded that petitioner's submissions would not change its prior determination.