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.

The defendants claimed they would need to hire an expert to retrieve the documents because they could not extract the data from hard drives or backup tapes without assistance. The court noted that, under New York state law, the party seeking discovery must bear the costs of production. Concluding that the electronic data was discoverable, the court noted it “need only determine whether the material is discoverable and whether the party seeking discovery is willing to bear the cost of production.” The court declared it was unable to order production of the electronic data until the plaintiffs established that they would bear production costs. The court ordered the parties to supply a detailed breakdown of the electronic data's location, procedures used to extract it, and the costs involved. Noting that “[d]iscovery has been proceeding at a snails pace, if at all,” the court also appointed a special referee to manage, arrange and monitor the e-discovery progress. Lipco Elec. Corp. v. ASG Consulting Corp., 2004 WL 1949062 (N.Y. Sup. Ct. Aug. 18, 2004).

In a patent-infringement and trade-secret theft suit, the plaintiffs requested direct access to all of the defendants' hard drives, servers and databases. The defendants argued that the discovery request was overbroad because it included more than the products at issue in the suit. Refusing to grant the plaintiffs' request for direct access to all of the defendants' computer systems, the court stated such a request “would require an expenditure of time and resources far out of proportion to the marginal value of the materials to this litigation.” Alleging discovery misconduct by the defendants, the plaintiffs also moved for spoliation sanctions against the defendants for failing to preserve e-mails and other electronic data relating to the product in dispute. However, the court declined to award spoliation sanctions because no evidence of intentional destruction of the e-mails existed, the plaintiffs did not attempt to establish the circumstances under which the e-mails were deleted, and a preservation order was not in place for the other electronic data. Convolve, Inc. v. Compaq Computer Corp., 223 F.R.D. 162 (S.D.N.Y. 2004).

In a case involving a labor dispute, the defendants moved for reconsideration of an earlier decision in which the court issued severe sanctions for mishandling and deleting electronic data during discovery. See, Metropolitan Opera Assoc., Inc. v. Local 100, 212 F.R.D. 178 (S.D.N.Y. 2003). Among other things, the defendants argued that sanctions were unwarranted because they had initially produced all relevant documents despite the plaintiff's contrary arguments. The defendants also contended that the court could not impose sanctions unless proof existed that the deleted documents were actually relevant. In response, the court declared it was unknown whether they actually produced all relevant documents because the defendants had deleted documents. The court also stated that the decision to impose sanctions was not based on whether the documents were relevant but, rather, based on the “vexatious manner” in which the defendants failed to comply with discovery. In upholding the sanctions award, the court noted the “defendants and their counsel may not engage in parallel know-nothing, do-nothing, head-in-the-sand behavior in an effort consciously to avoid knowledge of or responsibility for their discovery obligations and to obstruct plaintiff's wholly appropriate efforts to prepare its case.” See also, Metropolitan Opera Ass'n, Inc. v. Local 100, 332 F.Supp.2d 667 (S.D.N.Y. Aug. 27, 2004.) (In another decision issued in the case on the same day, the judge refused to recuse herself for remarks about the case made during a continuing legal education seminar.) Metropolitan Opera Ass'n, Inc. v. Local 100, 2004 WL 1943099 (S.D.N.Y. Aug. 27, 2004).

Citing Zubulake, Court Shifts
Most Costs To Plaintiff