e-Discovery Docket Sheet

In a class-action sexual harassment lawsuit, the plaintiff requested that the defendant bear the costs of searching 94 backup tapes for relevant e-mails. The plaintiff based its argument on a sample search of three backup tapes, purportedly containing a large number of relevant documents. The defendant disputed the volume of relevant documents recovered and asserted it should not be responsible for the costs, because only a small number of the recovered documents contained relevant data. In conducting its sampling analysis, the plaintiff retained Kroll Ontrack to retrieve relevant e-mails from three tapes, conduct keyword searches, and load the results into an online-review tool. Kroll Ontrack discovered 8,660 documents relating to eight search terms that the plaintiff provided. In analyzing who should bear the costs, the court adopted the seven-factor Zubulake test and added an eighth factor, which required the court to weigh “the importance of the requested discovery in resolving the issues at stake in the litigation.” Balancing these eight factors, the court determined that cost-shifting was appropriate and ordered the plaintiff to pay 75% of the costs of restoring the backup tapes, searching the data and transferring it to the online-review tool. Wiginton v. CB Richard Ellis, Inc., 2004 WL 1895122 (N.D.Ill. Aug. 10, 2004). (For a discussion of Wiginton, see, e-Discovery Cost Burdens Are In Flux in the October edition of e-Discovery Law & Strategy.)

In a discovery dispute involving two corporations, the plaintiff moved to compel the defendant to conduct and bear the costs of electronically searching backup tapes that the defendant had already produced. The plaintiff also sought to compel production of e-mail contained on additional backup tapes not produced to the plaintiff. In response, the defendant argued it would be costly and time-consuming to produce the additional backup tape e-mail and to search the already-produced backup tapes. The court determined that the plaintiff failed to establish that additional relevant backup-tape data existed and, as a result, denied the plaintiff's motion to compel additional documents. In assessing whether cost-shifting for the backup tapes already produced was warranted, the court adopted the Zubulake seven-factor cost-shifting analysis. The court approved the sampling approach conducted in Zubulake and ordered the defendant to recover responsive data from any five backup tapes of the plaintiff's choosing. The court would then assess whether the cost of recovering e-mails from the remaining backup tapes would be proportionate to the likely benefit. Hagemeyer North American, Inc. v. Gateway Data Sciences Corp., 222 F.R.D. 594 (E.D.Wis. 2004).

The plaintiffs sought to compel discovery of relevant electronic files, data and backup tapes from the defendants, despite the fact that the defendants had already produced hard copies of the electronic documents at issue. The plaintiff asserted that the only way it could confirm the accuracy of the hard-copy data was by obtaining the raw data in computerized form. In response, the defendants argued that extraction of the electronic data would be difficult, costly and time-consuming, even if the requested data was “material and necessary” to the action.