In a November 3, 2010 decision by Justice Bransten, the Court denied the defendants’ motion to compel the plaintiffs to pay for the costs of the defendants’ production of electronic discovery. The Court rejected the defendants’ argument that the plaintiff’s failure to respond to correspondence concerning discovery cost estimates constituted the plaintiff’s agreement to pay for the electronic discovery costs, finding that the plaintiff had no duty to respond and the lack of response could not be deemed acquiescence. The Court also found that because the electronic discovery at issue was not archived or deleted, but rather was stored in various places, the burdens of retrieval and production were no different from the normal burdens of litigation. Because the defendant’s electronic data was readily available, the court distinguished it from the leading New York cases addressing electronic discovery, including: (1) T.A. Ahern Contracting Corp. v Dormitory Authority, because that court ordered that neither party was to produce electronic discovery until each party agreed to cover the costs of the other party in producing the electronic data, which was subject to relocation at trial; (2) Lipco Elec. Corp. v ASG Consulting Corp., because the producing party’s burden was much greater than the defendants’; (3) Delta Financial Corp. v Morrison, because the court found that extensive electronic discovery had already proceeded and the party seeking discovery offered to pay the producing party’s costs to retrieve information from backup tapes which likely would not reveal relevant material; and (4) Etzion v Etzion, because the court ordered the plaintiff to pay the costs of her own computer expert where it was suggested that some files were deleted or altered.