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Cost-Shifting in Insurance Litigation Discovery: Where We Are and Where We've Been

(268 reviews)

Produced on June 13, 2016

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Course Information

Time 1h 31m
Difficulty Intermediate
Topics covered in this course: Insurance

Course Description

Now more than ever, discovery is driving litigation like the tail wags the dog. Aggressive plaintiffs’ attorneys are using discovery as a weapon to drive up defense costs and generate settlement leverage, while aggressive defense attorneys are using discovery disputes to stall cases and generate leverage of their own. This is causing an explosion of costs related to discovery, especially in the context of electronically stored information, where there is an entire cottage industry dedicated to taking a slice of legal defense budgets in the form of document hosting, tagging, and preparation of production. This trend is especially pronounced in insurance coverage and insurance defense litigation, where plaintiffs’ attorneys often try to drive up defense costs as high as possible in order to push insurers into settling.     


Due to the rapidly-increasing costs being expended in discovery, the ability to shift a percentage of discovery costs onto the opposing party has never been more important. Insurance companies tend to be especially diligent about keeping records and electronically stored information, which only increases the volume of potential production. This makes cost-shifting particularly important in the insurance context, as it provides a powerful disincentive for requesting parties to engage in “litigation by attrition.” 


We all know the long-standing general rule that a party must ordinarily pay its own costs to respond to discovery, but effective December 1, 2015, Rule 26 of the Federal Rules of Civil Procedure was amended to expressly address cost-shifting in discovery, a practice that has already been employed in many states and federal districts. While this rule-change may not usher in a new era where the requesting party is routinely expected to shoulder a portion of production costs, it coincides with a nationwide judicial trend toward acceptance of the concept of cost-shifting, and provides express authority that may prompt courts to be even more willing to consider cost-shifting orders.    


This course, presented by William Murray, a partner and seasoned trial attorney with Gordon & Rees, along with his forward-thinking associate Steven Zakrzewski, provides an overview of the case-law addressing discovery cost-sharing and recent changes to the Federal Rules directly addressing cost-sharing. The presenters give their assessment of development trends in cost-sharing, and also share real-world examples from their own litigation experience and practical tips to assist attendees in setting up and utilizing cost-sharing motions as another element of their litigation arsenals. 


Learning Objectives:

I.    Explore pre-2016 case-law addressing requests for cost-sharing in discovery

II.    Review the recent changes to the Federal Rules of Civil Procedure addressing cost-sharing in discovery, and related changes to the Federal Rules that took effect in the past eight months

III.   Assess developing trends in discovery cost-sharing and the likely effects of the recent amendments to the Federal Rules

IV.   Gain practical tips and examples to help insurance practitioners assess when and how to seek cost-sharing 

Credit Information

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Steven Zakrzewski

Gordon Rees Scully Mansukhani, LLP

Steve Zakrzewski is Senior Counsel in the firm’s Tort & Product Liability, Professional Liability Defense, Employment Law, and Insurance practice groups. He has litigated cases of all sizes and levels of complexity in Connecticut’s state and federal courts, and he regularly works with local counsel to handle cases outside of Connecticut.

He has a deep knowledge of the Connecticut Product Liability Act, as well as Connecticut’s procedural rules, representing clients in both state and federal court. Mr. Zakrzewski also defends mass tort claims, including asbestos cases and, more recently, litigation regarding opioid medications. Additionally, he coordinates nationwide litigation defense strategies for clients facing cases in multiple jurisdictions and on the federal multi-district litigation docket. This includes direction and management of dispositive motions, large e-discovery projects, deposition coordination, and settlement negotiations.

In professional liability cases, Mr. Zakrzewski represents condominium associations, real estate professionals, insurance professionals, and attorneys. His approach consistently produces positive outcomes for his clients, both in court and in mediation.

In the employment context, Mr. Zakrzewski consistently produces great results for clients facing discrimination claims under Title VII, the Connecticut Fair Employment Practices Act (CFEPA), and the Americans with Disabilities Act (ADA), as well as wage and hour claims. He has resolved cases pending in Superior Court, the District of Connecticut, and before the Commission on Human Rights and Opportunities. He has won cases by dispositive motions, and has also reached many settlements for nuisance value, or less.

William E. Murray

Gordon Rees Scully Mansukhani, LLP

Bill Murray is a partner in the Hartford office. His practice focuses on insurance coverage litigation, professional liability litigation, employment practices liability litigation, and construction liability litigation. His experience includes complex personal injury defense, commercial and residential foreclosure, legal malpractice, discrimination, product liability, lender liability, and secured transaction litigation.

Mr. Murray also has extensive experience representing national corporations in large consumer class actions, complex contract disputes.

Earlier in his legal career, Mr. Murray handled a variety of insurance defense matters and a number of insurance coverage disputes, including those involving coverage disputes for environmental claims.





U.S. Supreme Court

Federal District Court of Connecticut

Federal District Court, District of Massachusetts



American Bar Association 

Connecticut Bar Association 

Defense Research Institute



J.D., University of Connecticut School of Law, with honors

B.A., College of the Holy Cross



Joseph D.

very good presentation

George V.

Great and very useful presentation,

Marsha W.

Excellent, articulate presenters.

Diane H.

Enjoyed your presentation

Mark B.

interesting course

Robert E.

extremely well presented

alexander y.

This was one of the more organized and informative presentations. Very helpful.

James L.


James D.

Excellent program. Well supported with legal authority, good legal analysis and practical advice. Highly recommended.

Kathleen D.

good speakers, lively discussions

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