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Second Edition Released! eLL blog reviews Managing Discovery of Electronic Information: A Pocket Guide for Judges (Part 2 of 3)

Welcome back for the second of our three-part series summarizing and highlighting the most important parts of the new electronic discovery pocket guide for federal judges. Part One focused on the volume of electronic discovery now being used in judicial proceedings, proper procedures for Rule 16 conferences, and the scope of electronic discovery under Rule 26.

Part Two focuses on cost-shifting, subpoenas and implicated third parties, and form of production.

Finally, Part Three will focus on privilege and waiver, preservation, spoliation, and sanctions (stay tuned!)

Cost Shifting for Discovery

Discovery for electronically stored information (ESI) can get extremely expensive, thus the guide outlines the appropriate rules and landmark cases that should help guide judges’ decisions for discovery cost shifting. The Guide emphasizes that “although Rule 26(b)(2)(B) does not contain explicit language authorizing cost shifting, the Advisory Committee note to the rule clearly anticipates the shifting of costs of producing information that is not reasonably accessible.”

In addition, the Guide summarizes the two major cases that have introduced multifactor tests for cost shifting: Rowe Entertainment, Inc. v. William Morris Agency, Inc. and Zubulake v. UBS Warburg LLC.


In Rowe, “the defendants objected to the production of e-mail information from backup media on the grounds that such discovery was unlikely to provide relevant information and would invade the privacy of nonparties.” They subsequently argued that if production was ordered despite those concerns, the plaintiffs should bear the costs of production. The court concluded that the e-mail information was relevant and that there could not be an order precluding discovery of all of it. However, the court recognized the huge cost involved in production so it balanced eight factors, derived from case law, to determine what each side should pay for. These eight factors are:

  1. Specificity of the discovery requests;
  2. Likelihood of discovering critical information;
  3. Availability of such information from other sources;
  4. Purposes for which the responding party maintains the requested data;
  5. Relative benefit to the parties of obtaining the information;
  6. Total cost associated with production
  7. Relative ability of each party to control costs and its incentive to do so; and
  8. Resources available to each party

After balancing these eight factors, “the court required that the plaintiffs pay for the recovery and production of the e-mail backups, except for the cost of screening for relevance and privilege.”


A sex discrimination case that “involved the production of e-mail messages that existed only on backup tapes and other archived media.” The court first had to determine that the plaintiff’s request was relevant to her claims (which it was), and then determined that

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the “usual rules of discovery generally apply when the data are in accessible format, but that cost shifting should be considered when data were relatively inaccessible, such as on backup tapes.”

Instead of using the Rowe factors, the court in Zubulake created a list of seven different ones:

  1. Extent to which the request is specifically tailored to discover relevant information;
  2. Availability of such information from other sources;
  3. Total cost of production, compared to the amount in controversy;
  4. Total cost of production, compared to the resources available to each party;
  5. Relative ability of each party to control costs and its incentive to do so;
  6. Importance of the issues at stake in the litigation; and
  7. Relative benefits to the parties of obtaining the information

*As opposed to Rowe, the court emphasized that these seven factors should be weighted according to their particular level of importance in each case.

In addition to those seven factors, the court also “set forth a sensible approach for assessing costs when a large amount of ESI that is not reasonably accessible is involved.” For example, in that case, the court ordered that 5 out of the 77 backup tapes be restored first. The plaintiffs found that there were about 600 messages there at a cost of about $19,000. Therefore, by sampling a smaller portion first, the entire cost of production could be estimated and the court could then determine that the defendants would bear 75% of the cost.


Rule 45 – Discovery From Nonparties

The Guide emphasizes that “discovery from nonparties is likely to be more frequent when the parties are seeking ESI than when they are seeking paper documents.” This is because many businesses now use telecommunications companies, Internet service providers, cloud computing, and have third party computer network owners which may often be relevant for discovery. Additionally, social media sites like Facebook and LinkedIn are frequently relevant for

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discovery in personal injury, employment discrimination, libel, and other types of cases.

While Rule 45 of the FRCP “has no equivalent to the Rule 26(f) conference process,” the Guide encourages parties seeking discovery from nonparties to meet informally with nonparty respondents and discuss:

  • Scope of the subpoena
  • Form in which ESI is to be produced
  • Protection against waiver for privileged and protected information
  • Allocation of discovery costs

Forms of Production

Form of production can be vital to proper discovery as it can greatly affect how easy it is to search the information, whether sensitive information is improperly revealed, and how it can be preserved for subsequent litigation. Rule 34 of the FRCP “recognizes that different forms of production may be appropriate for different types of ESI.” Importantly, the guide notes that “[t]he Advisory Committee note is clear that production of ESI in a form that removed or significantly degrades the recipient’s ability to search the information electronically generally does not fulfill the ‘reasonably usable’ requirement.”

While the Guide emphasizes again and again that parties should discuss the form or forms of production at the Rule 26(f) conference and inform of disputes at the Rule 16 conference, disputes are bound to occur and the Guide sets out a number of things that judges should consider when resolving them:

  • What alternative forms are available? What are their benefits and drawbacks for the requesting party?
  • How difficult will it be for a responding party to preserve, collect, review, and produce ESI in the form requested?
  • If the responding party is not producing ESI in the form in which it is ordinarily maintained, is the party producing it in a form that is reasonably usable by the requesting party?
  • If the requesting party disputes that the proposed form of production is reasonably usable, what limits its use? Has the responding party stripped features, such as searchability, or metadata or embedded data that may be important? If so, what is the justification?


Part Two of the review demonstrates once again that judges are going to be looking for parties that can communicate effectively with one another and will require for production only that which is necessary. Due to the massive amount of ESI that exists, discovery must be very closely targeted to relevant information to avoid waste and excessive costs.

Stay tuned for our summary of the rest of the Guide in Part Three!

Catherine graduated magna cum laude from Rutgers University, New Brunswick in 2010 with a B.A. in political science. She will receive her J.D. from Rutgers School of Law – Camden in 2014. This year she will participate in the competitive Hunter Moot Court. This past summer she interned with a magistrate judge for the U.S. District Court, District of New Jersey where she contributed to a bench trial opinion, among other notable experiences.

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    The blog takes a clever approach to [e-discovery]. Each post discusses an e-discovery case that involves an e-discovery mishap, generally by a company employee. It discusses the conduct that constituted the mishap and then offers its ‘e-lesson’ — a suggestion on how to learn from the mistake and avoid it happening to you.

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    Although I may have missed some, yours is the first article that I have seen addressing Zubulake II. It is often the lost opinion amongst the others.

    Laura A. Zubulake

    Plaintiff, Zubulake v. UBS Warburg

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