of overcoming that presumption.” This Court finds that
Plaintiffs have not met their burden, and should bear their own
litigation costs.

Plaintiffs cite to several court opinions, all of which miss
the mark as they each address the issue of cost-sharing amongst
the requesting party and the producing party, not between a
requesting party and a non-requesting, non-producing opponent in
the underlying litigation, such as with Defendants. Most
extraneous is Plaintiffs’ citation to two opinions which outline
a thorough eight-factor test to aid courts in determining to what
extent, if any, they should look to require the shifting or
sharing of costs related to the production of electronic
information. See Wiginton v. CB Richard Ellis, Inc., 229 F.R.D.
568, 573 (N.D. I1l 2004) (District Court held that relevant
factors favored sharing costs of electronic discovery requested
by plaintiffs, several female employees alleging sexual
harassment, with defendants, the employer and producing party of
the requested e-discovery); and Zubulake v. UBS Warburg LLC, 217
F.R.D. 309, 320 (S.D.N.Y. 2003). However, neither of these cases
discuss cost-sharing between a requesting party and a party such
as Defendants who is neither producing nor requesting, and has no
independent need for the data. Moreover, not one case that
Plaintiffs cite to requires the defendant to share the costs of

obtaining discovery from third parties. Because Plaintiffs have



party can, or should, expect the opposing party to contribute to
the expenses. Instead, the Sedona Conference Commentary is
largely concerned with the burden being placed on a non-party to
produce information. Id. at 198-199. Its discussion of cost-
shifting focuses on the shifting of costs from a non-party back
to the party serving the subpoena, as it proclaims that “[t]hird
parties should not be required to subsidize litigation in which
they have no stake in the outcome.” Id. at 199.

The Sedona Conference Commentary’s only reference to cost-
sharing between two parties is in a list of best practices, which
includes a suggestion that parties meet and confer to “address”
cost-sharing, amongst other things, in their initial Rule 26(f)
conference. Id. at 201 (emphasis added). Plaintiffs acknowledge
that, on July 14, 2011, the parties did just that. Plaintiffs
scheduled and conducted a Rule 26(f) conference call and
addressed the idea of cost-sharing, to which Defendants “insisted
that they should only have to pay ‘incremental’ costs of making 2
sets of the data.” 9/28/11 Status Report at 16. The Commentary
only suggests a discussion of cost-sharing amongst the parties,
it does not provide any grounds for forcing Defendants to accept
the proposal. Moreover, the Commentary declares that “[c]ost-
shifting or cost-sharing are inconsistent with the so-called
“American Rule” that each party bears its own litigation costs.

The party seeking cost-shifting or cost-sharing bears the burden



failed to provide any law or reason to the contrary, the Court
finds the normal approach that each party bears its own burden of
litigation most appropriate.

Although Defendants have consistently argued otherwise,
Plaintiffs assert that Defendants’ need for the audit trail data
is much greater than they claim. This argument is futile, for it
is indeed Plaintiffs’ burden to prove what they have alleged
against Defendants, and whatever costs are incurred in doing so,
these costs must be borne by the party seeking the information -
Plaintiffs. This Court acknowledges that “Defendants have
substantially more resources than Plaintiffs”, unfortunately for
Plaintiffs though, that is a fact that this Court cannot
consider. 9/27/2011 Status Report at 16. This court will not
force the Defendants to pay for the evidence that Plaintiffs need
in order to prove their case against Defendants. Defendants have
requested and offered to pay for the costs of copying the data
Plaintiffs seek, not because they need it, but “to ensure that
the integrity of the data is maintained and that the data will be
available to them if and when Defendants are required to
challenge Plaintiffs’ assertions” Defs.’ Response at 5. The
Court finds this to be an equitable arrangement, and believes it
should allay any of Plaintiffs concerns that they will be forced
to provide Defendants “with ‘free copies of the records’ they

obtained.” Pls.’ Reply at 14 (citing Antoine v. Wexford Med.



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

LAST ATLANTIS CAPITAL, LLC,

et al., Nos. 04 C 0397

)
)
)
Plaintiffs, )
)
vs. ) JUDGE ELAINE BUCKLO
) MAGISTRATE JUDGE ARLANDER KEYS
AGS SPECIALIST PARTNERS, )
et al., )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

On September 28, 2011, Plaintiffs submitted a Status Report,
and put forth a proposal during the status hearing, for
Defendants to share in the costs of obtaining data from the
Exchanges that Plaintiffs subpoenaed [985]. The Court allowed
all Defendants to file a response to Plaintiffs’ Status Report
and proposal. Defendants rejected the proposal, asserting that
there is neither reason nor precedent for requiring Defendants to
share the costs incurred in connection with collecting data that
Plaintiffs subpoenaed from third parties. For the reasons set
forth below, the Court agrees with Defendants, and denies
Plaintiffs’ request to require Defendants to pay one-half of all
the costs incurred by Plaintiffs in connection with the
reimbursement of the Exchanges’ production of audit trail data to

Plaintiffs.



Serv., 2009 WL 130282 (S.D. Ill. Jan. 18, 2009).

CONCLUSION
For the reasons set forth above, Plaintiffs’ proposal that
Defendants pay one-half of all costs incurred by Plaintiffs in

pursuing third-party discovery [985] is Denied.

DATED: December 5, 2011 ENTERED:

Qiks Kos

ARLANDER KEYS “
United States Magistrate Judge



DISCUSSION

In light of both Judge Bucklo’s and this Court’s numerous
previous decisions surrounding this matter, the Court presumes
familiarity with the relevant background facts. See Last
Atlantis Capital, LLC, et al. v. Chicago Board Options Exchange,
Inc., 455 F.Supp.2d 788 (N.D. Ill. 2006). All involved herein
are aware that the linchpin of this entire matter, that is
obtaining the necessary Exchanges’ audit trail data for analysis,
has been obfuscated long enough. Plaintiffs have vacillated on
feasability, cost, and responsibility of procurement, while
Defendants have steadfastly maintained that they have no
independent need for the information, except for rebuttal
purposes.

During the Status Conference before this Court on September
28, 2011, in an effort to accelerate this protracted litigation,
the Court made the suggestion that the Defendants aiding in half
the costs of obtaining the audit trail data would be reasonable.
Dkt. No. 989. Not surprisingly, Defendants rejected the
suggestion. The time to take a definitive stance on the issue
has arrived, and the Court finds that mandatorily allocating to
Defendants half of Plaintiffs’ costs incurred in connection with
Plaintiffs’ subpoenas to the Exchanges is unwarranted. If
Plaintiffs are to proceed, they must independently obtain the

Exchanges’ data for analysis.



Plaintiffs rely on this Court’s earlier status conference
suggestion, the Sedona Conference Commentary, and several court
opinions, all of which fail to strongly, if at all, support their
contention that the sharing of costs is appropriate. Plaintiffs
first point to this Court’s comments during the September 28,
2011 Status Conference as evidence that costs should be shared.
During that conference, the Court admits to suggesting to
Defendants that Plaintiffs’ proposal of cost sharing sounded
“reasonable”. Tr. At 9:05, 20:01 However, those comments were
made to encourage movement within this stagnant litigation. It
was purely a suggestion for Defendants to take into
consideration. Defendants immediately renounced the proposal,
and once the Court was able to further research the precedent
surrounding cost-sharing, the Court too rejects Plaintiffs’ cost-
sharing proposal.

Both the Sedona Conference Commentary and case law that
Plaintiff relies upon fail to support the notion of a non-
requesting, opposing party being required to aid a requesting
party in funding its efforts to obtain third-party data.
Plaintiffs’ reliance upon the Sedona Conference Commentary on
Non-Party Production & Rule 45 Subpoenas, 9 Sedona Conf. J. 197
(2008), is especially curious, as it is almost entirely
irrelevant to the instant matter. The Commentary does not bolster

Plaintiffs’ position that a party seeking information from a non-