Toshiba Am. Elec. Components, Inc. v. Superior Court, 124 Cal. App. 4th 762 (2004)

Lexar Media, Inc. sued Toshiba for misappropriation of trade secrets, breach of fiduciary duty, and unfair competition. In response to Lexar’s demand for production of documents, including email messages, Toshiba produced more than 20,000 pages. Although additional responsive material was stored on Toshiba’s computer backup tapes, Toshiba’s electronic discovery specialist estimated that it would cost between $1.5 and $1.9 million to search, process, restore and produce the responsive items from the tapes. The trial court granted Lexar’s motion to compel production of all non-privileged emails within 60 days and did not order Lexar to bear any of the costs of production. Apparently, neither party referred the trial court to the pertinent California statute (Code of Civil Procedure § 2031(g)(1)), but Toshiba did assert in its writ petition to the Court of Appeal that the statute is an automatic costshifting provision (from the party producing the items to the party demanding them) that should apply in the instant case. The Court issued a peremptory writ of mandate directing the trial court to vacate its order granting Lexar’s motion to compel and to determine whether and to what extent the cost-shifting provisions of Section 2031(g)(1) apply to Lexar’s discovery demands.