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Welcome to our signature feature, eDiscovery Origins: Zubulake, designed to give readers a primer on the eDiscovery movement through blog posts about Zubulake, the series of court opinions that helped form the foundation for eDiscovery. eDiscovery Origins: Zubulake takes each Zubulake decision and distills its key elements into what has become our trademark – simple, witty, easy to understand eLessons.
eDiscovery Origins: Zubulake also takes a behind-the-scenes look at those who have most influenced the eDiscovery movement and offers insight into their contributions. As one leading eDiscovery guru put it, “if you are a novice to eDiscovery case law this is a must read.”
This case involves a contractual dispute worth $41 million between Juster and North Hudson Sewerage Authority (NHSA). Juster issued a request for production of documents that included 49 requests for documents and a list of 67 proposed search terms. Some of these terms included words such as “fee,” “debt,” “tax,” and “SEC.” NHSA argues that the court should grant a protective order because it already produced 8,000 pages of documents and felt these search terms were too vague. Additionally, NHSA stated that if the court did not grant its protective order, the cost for producing these documents and running the searches should be shifted to Juster. The court did not agree with NHSA’s claims. Not only was there a lack of evidence that the data requested here was inaccessible, the court also applied the seven-factor test set forth in Zubulake v. UBS Warburg. This case has been adopted by the Third Circuit in cases that involve fee shifting. The Zubulake factors include: The extent to which the request is specifically tailored to discover relevant information; The availability of such information from other sources; The total cost of production, compared to the amount in controversy; The total cost of production; The relative ability of each party to control costs and its incentive to do so; The importance of the issues at stake in the litigation; and The relative benefits to the parties of obtaining the information In applying the Zubulake factors to this case, the court held that fee shifting is not warranted. The requests for electronically stored information (ESI) were tailored, as the searches were restricted to a specific time period (2011-2012). Second, it is unknown if this information is available from other sources. The third, fourth, and fifth factors are concerned with the costs associated with the request for ESI. Here, the court found that given the amount of damages at stake, NHSA’s ability to absorb the costs of the ESI requests, and the projected costs are not substantial enough to justify fee shifting. The fact that the litigation had $41 million at issue and the cost of running the keyword searches was approximately between $6,000 and $16,000, the court felt fee shifting would be inappropriate. The final factors are not relevant to this litigation as this is a private contractual dispute between two parties and no public policy is implicated. Overall, these factors weigh heavily in favor of Juster. As a result, this case illustrates that courts are reluctant to sway from the idea that it is the responding party that bears the costs in complying with discovery requests. Only when there is an undue burden on the responding party, or inaccessibility of information, will the court consider fee shifting. Yet, given today’s society, most information is accessible. Additionally, when both parties have comparable discovery requests and both agree to pay their own costs in producing discovery, fee shifting is even less likely to occur. Jennifer Whritenour received her B.S. in Political Science and History in 2011 from the University of Scranton. In May 2014, she received her J.D. from Seton Hall University School of Law.
Interviewed by Catherine Kiernan, Co-Editor in Chief, eLLblog.com Chapter 12: The VerdictContinue Reading
Interviewed by Catherine Kiernan, Co-Editor in Chief, eLLblog.com Chapter 11: The TrialContinue Reading
Interviewed by Catherine Kiernan, Co-Editor in Chief, eLLblog.com Chapter 10 The Step ForwardContinue Reading
Interviewed by Catherine Kiernan, Co-Editor in Chief, eLLblog.com Chapter 9 Zubulake VContinue Reading
Interviewed by Catherine Kiernan, Co-Editor in Chief, eLLblog.com Chapter 8 Lost & FoundContinue Reading
Interviewed by Catherine Kiernan, Co-Editor in Chief, eLLblog.com Chapter 7: Zubulake IVContinue Reading
Interviewed by Catherine Kiernan, Co-Editor in Chief, eLLblog.com Chapter 5 Zubulake IContinue Reading
Interviewed by Catherine Kiernan, Co-Editor in Chief, eLLblog.com Chapter 4 The e-Discoverer TWEET -“Every decision I made to search, compel, seek sanctions, or enter that courtroom was based on some kind of mathematics.” -- Zubulake’s e-Discovery Q: As to Chapter 4 (The e-Discoverer), please describe the greatest challenge you faced at that stage of your writing the book. A: At the time of my litigation, the governing rules were interpreted to relate primarily to paper documents and not electronically stored information. The law was grey in this area. There was little legal precedent to guide my actions. However, I believed the electronic documents would be supportive of my case. The lack of legal clarity was a challenge and I did not want it to affect the outcome of my case. As a businessperson (not an attorney) I found math to be an effective means to address my challenges.Continue Reading