E-discovery costs have dramatically changed the dynamics in all manner of litigation but most acutely in the putative class-action context, where the respective discovery burdens of would-be class plaintiffs and defendants are grossly asymmetrical. Class-action defendants must include this cost burden in their risk and exposure calculus even in frivolous cases where plaintiffs have no hope of ever certifying a class. This inherent litigation cost differential, which is largely unique to putative class actions, can lead to an undeniably unjust result: cases being settled based on cost pressure, rather than the relative merits. Some courts, though most recently the District Court for the Eastern District of Pennsylvania in Boeynaems v. LA Fitness Int’l, 285 F.R.D. 331 (E.D. Pa. 2012) recognize these inequities and shift to class-action plaintiffs and their counsel some of the e-discovery cost burdens that ordinarily fall only on the defense. But what does it take to arrive at such a ruling?
The Legal Backdrop
Many courts, including courts in the Third Circuit, have applied the seven-factor test for cost allocation set forth in Zubulake v. UBS Warburg, 217 F.R.D. 309, 322 (S.D.N.Y. 2003), which largely tracks the "rule of proportionality" set forth in Fed. R. Civ. P. 26(b)(2)(C)(iii):
