Shampoo Moguls Learn That Cowboys Use Zubulake, Too

January 13, 2010

    Authored By: eDiscovery Cowboy

    Citation: Proctor & Gamle Co. v. S.C. Johnson & Son, Inc., 2009 WL 440543 (E.D. Tex. Feb 19, 2009).

    Employee/Employer Implicated: In-House Counsel

    e-Lesson Learned: If you want to shift the cost burden of OCR (Optical Character Recognition) to an opposing party, you’d better back up your request with some legitimate facts.

In this recent opinion, one Texas Court applied the Zubulake cost-shifting factors to a shampoo company’s unsupported argument that the opposing party should have to share the costs of performing OCR… and booted their argument to the curb.

At the pre-trial Case Management Conference, the Court ordered the parties to submit estimates of the costs involved in the production of documents in searchable Tagged Image File Format (“TIFF”) with Optical Character Recognition (“OCR”) before it made a ruling on the format of electronic discovery.  OCR is how static images of text are translated into a format, via a computer software program, that can be searched or read electronically.  It is only used to render documents maintained in hard copy format, as opposed to electronic documents, searchable.  The Court noted that “OCR, while perhaps not absolutely necessary to litigation, is a tool that greatly decreases the time and effort counsel must invest in searching and examining documents.”

The parties agreed that all documents would be produced in TIFF format, but the Defendant, S.C. Johnson & Son, Inc., argued that it should not have to perform the OCR process on these documents prior to production because, in Defendant’s estimation, the total cost of the OCR would exceed $200,000.

The Defendant, however, failed to provide the Court with a per page cost estimate or even the total number of pages on which it expected to perform the OCR process.  The Court also found it “difficult to believe that in the age of electronically stored information so much of the requested data is only maintained in hard copy format which would require OCR to be searchable” and concluded that “Defendant has failed to provide any support whatsoever for its estimate.”

Nonetheless, Defendant asserted that the cost burden of the OCR process should be shifted.  In Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y.2003); Rowe Entertainment, Inc. v. William Morris Agency, Inc., 205 F.R.D. 421 (S.D.N.Y.2002), aff’d 2002 WL 975713 (S.D.N.Y. May 9, 2002), the Court held that cost shifting could be considered when the data was relatively inaccessible and formulated a seven factor test: (1) the extent to which the request was specifically tailored to discover relevant information; (2) the availability of such information from other sources; (3) the total cost of production, when compared to the amount in controversy; (4) the total cost of production, when compared to the resources available to each party; (5) the relative ability of each party to control costs and the 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. Zubulake, 217 F.R.D. at 322. These seven factors should not be weighted equally; rather, they should be considered in numerical order of descending importance, where factors one and two are the most important and factor seven is the least important.  Id. at 323.

Applying the Zubulake factors to the case at bar, the Court concluded that the seven factors did not favor cost-shifting in this instance.  The Court noted that Defendant failed to contend that the information requested was not relevant or that it was unlikely to lead to the discovery admissible information.  Additionally, The Defendant failed to show that the documents requested were obtainable from other sources.

Thus, the Court ordered S.C. Johnson & Son, Inc., to perform its own OCR – and pay for it, too.  The painfully simple lesson learned here is: don’t make a motion to share costs without at least providing some minimal amount of evidence in support of your otherwise specious (and probably exaggerated) estimations of cost.

e-Discovery Cowboy is a third-year law student at Seton Hall University in Newark, New Jersey.  He will be moving to Dallas in just a few short weeks to study for the bar and then work at a firm.  Yeeehawww.

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