Toshiba

In this discovery dispute the parties disagree about whether the demanding party or the responding party should pay the cost (possibly as much as $1.9 million) for recovering usable information from the responding party’s computer backup tapes. We conclude that in a proper case, Code of Civil Procedure, section 2031, subdivision (g)(1) (hereafter section 2031(g)(1)) requires the demanding party to pay that expense. The determination of a proper case is a factual matter best left to the discretion of the trial court.

I. Factual and Procedural Background

Plaintiff, Lexar Media, Inc. (Lexar) sued Toshiba America Electronic Components, Inc. (TAEC) and TAEC’s parent company Toshiba, Inc., for misappropriation of trade secrets, breach of fiduciary duty, and unfair competition. Lexar served TAEC with a request for production and inspection of documents (§ 2031) by which Lexar sought 60 categories of documents. Lexar defined documents to include “electronic mail” and “other forms of electronically or magnetically maintained information.” TAEC responded, subject to assorted objections, that it would produce copies of documents responsive to many of the 60 categories. After TAEC…