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The Discovery Dance
Daniel Blouin
Law Technology News
01-15-2004
The discovery dance begins as anticipated. First, your litigation opponent serves a discovery request informing you that you have 30 days to produce any and all materials, including but not limited to written documents, e-mail communications and computer databases which address, describe, reference, or in any way relate to "Subject X."
In response, you object on the grounds that the request is overly broad, unduly burdensome and not likely to lead to the discovery of relevant information. In an attempt to support your objections, you inform your opponent that the requested materials will fill up a warehouse larger than the one depicted in the final scene of "Raiders of the Lost Ark." Surely, neither your opponents nor the court expect you to review and ultimately produce this mountain of paper -- right?
In the paper world such imagery may have been persuasive. Today, however, the warehouse of paper may be able to be produced on a relatively limited number of CDs, DVDs or computer tapes, and thus, at first blush, does not present the same visual mountain to be overcome.
Notwithstanding the lack of physical mass, the prospect of identifying, reviewing and ultimately producing large quantities of electronically stored materials can be extraordinarily time-consuming and expensive.
In apparent recognition of this fact, several courts recently have designed and implemented balancing tests that could shift some of the burden and costs to the requesting party. For example, in Zubulake v. UBS Warburg LLC, et al., No. 02 Civ 11243 (S.D.N.Y.), U.S. District Court Judge Shira Scheindlin recently issued her fourth ruling in a closely watched case that has been tackling the question of how to allocate the costs associated with recovery of e-mails and other electronic materials.
In Zubulake, a former equities trader sued UBS for gender discrimination. During discovery the plaintiff requested production of numerous e-mails. UBS objected to the discovery request, claiming that it would cost approximately $300,000 to retrieve the requested materials which had been stored on backup tapes.
In conducting the cost-shifting analysis, Judge Scheindlin outlined and applied a seven-pronged test. Specifically, the court stated that the following factors should be considered, weighted more or less in the following order: (1) the extent to which the request is specifically tailored to discover relevant information; (2) the availability of such information from other sources; (3) the total cost of production, compared to the amount in controversy; (4) the total cost of production, compared to the resources available to each party; (5) the relative ability of each party to control costs and its incentive to do so; (6) the importance of the issues at stake in the litigation; and (7) the relative benefits to the parties of obtaining the information.
Based on these principles, the court determined that Zubulake and UBS must share the costs of restoring the documents from backup tapes.
Faced with the prospect of either narrowing their discovery requests or paying a portion of the responding party's costs, certain creative litigants have devised a completely new strategy.
Now, in response to an objection that compliance with a discovery request would be too burdensome or costly, they contend that the burden can be eliminated completely if the responding party merely turns over the keys to their proverbial electronic kingdom.
Once granted access, the requesting party promises to sift through the mountain of materials themselves and presumably take only what they need. In other words, provide the keys to your warehouse and don't worry, they'll turn out the light and lock up when they leave.
Needless to say, such an approach would raise more than a few issues, including security, privilege and confidentiality.
Although requests for direct, unfettered access to an opponent's databases or other electronic materials may appear far-fetched, such requests nevertheless are being asserted around the country. For example, in In re Ford Motor Co., 2003 U.S. App. Lexis 19531 (11th Cir., September 22, 2003), the 11th U.S. Circuit Court of Appeals recently addressed whether, pursuant to Rule 34, a requesting party should be permitted direct access to information stored on Ford's databases.
The court ultimately concluded that the discovery rules allow the responding party to search its own records to produce the required, relevant data. The rules do not give the requesting party the right to conduct the actual search. Implicit in the 11th Circuit's decision is the fact that providing a party with the keys to its opponent's electronic kingdom is not a panacea for the problems created by overly broad and burdensome electronic discovery requests.
Rather, litigants would be better served to draft discovery requests that are reasonably limited in scope. In addition, more times than not, good faith negotiations with opposing counsel should resolve most, if not all, discovery disputes.
Finally, once reasonable requests are tendered or otherwise agreed upon, to the extent possible, technological tools should be used to mine the universe of potentially responsive electronic materials.
By following these relatively simple steps, all interested parties will benefit in that pretrial discovery will proceed much more quickly, efficiently and cost-effectively.
Daniel Blouin is a partner at Seyfarth Shaw (www.seyfarth.com), based in Chicago.
Related Article: Zubulake Update
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