STRATEGIES FOR ELECTRONIC DISCOVERY

Transcription

1 STRATEGIES FOR ELECTRONIC DISCOVERY Gordon & Glickson LLC 444 North Michigan Avenue Suite 3600 Chicago, Illinois Tel: (312) Fax: (312) This article and the accompanying presentation are intended to alert the reader to some of the legal issues discussed herein. The impact of the law for each particular situation depends on a variety of factors, therefore, we strongly recommend you engage legal counsel to assess and help minimize your legal liability based on the particular requirements of your institution. Like any article and presentation, these are not meant to be used as a substitute for legal counsel. All Rights Reserved

2 STRATEGIES FOR ELECTRONIC DISCOVERY Introduction Technology has dramatically increased the universe of discoverable material in commercial litigation. In a world where the average worker receives forty s each day 1 and more than eighty percent of all corporate data is created and stored electronically (most never making it to hard copy), 2 the potential -- and actual -- volume of electronic information created within any given organization is staggering. Electronically stored information exists in devices such as computer laptops, computer desktops, centralized servers, storage media (e.g., CD- ROMs, floppy diskettes, magnetic tape and ZIP disks), Personal Data Assistants (PDAs), cellular telephones, pagers and even digital cameras. Moreover, such electronically stored information consists of not only active data or data files, 3 but also accompanying metadata and embedded data, 4 replicant data 5 and residual data. 6 As the expense associated with electronic discovery may be extraordinarily high -- as high as $6.2 million in one case 7 -- it is important that counsel facing a commercial dispute involving electronic discovery understand the strategies for obtaining and limiting the discovery of electronic information. Discovery of Electronic Information Electronically stored information is discoverable if the request satisfies the requirements of Rule 26 of the Federal Rules of Civil Procedure -- the same as for any other discovery. 8 Rule 26 allows for discovery of information if it is (1) relevant to the subject matter of the lawsuit; (2) not unnecessarily cumulative or duplicative; (3) the burden or expense does not outweigh its benefit; and (4) the information does not qualify for a privilege or work product protection. 9 Moreover, Rule 34 specifically provides for the discovery of any data compilations from which An edited version of this article appeared in the Computer Law Association Bulletin, Vo. 18, No 4, p

3 information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably useful form. 10 This rule equally applies to electronic data compilations. 11 Although some commentators have questioned whether Rule 34 needs to be revised to adequately address the discoverability of electronic information, 12 many courts do not appear to share that quandary. As the court in Anti-Monopoly v. Hasbro noted, it is black letter law that computerized data is discoverable if relevant. 13 However, as a practical matter, a host of issues remain unsettled. For example, to what extent does electronic data -- including embedded data (such as cookies), replicant data (such as cache and history files) and backup data -- fall within Rule 34 s document definition? 14 Moreover, if a producing party elects to produce in hard copy form documents existing only electronically, has the producing party complied with the requirements set forth in Rule 34 to produce documents as they are kept in the usual course of business? Finally, what if the seeking party requests production of documents in hard copy and electronic form? Is the producing party required to produce the documents twice, albeit in different formats. And often most importantly, who should bear the cost of production? Courts are developing new rules on an ad hoc basis in response to these issues. Although courts are reluctant to alter the general rule that producing parties should bear the expense of production, 15 recent cases have begun to outline a framework for addressing issues and shifting costs associated with electronic discovery. For example, in Rowe Entertainment, Inc. v. William Morris Agency, Inc., 16 the court was faced with the defendants motion for a protective order against the plaintiffs discovery request requiring them to search back-up tapes of their systems. The defendants argued that the burden and expense of such production would far outweigh any possible benefit to the plaintiffs. 17 Alternatively, the defendants sought to shift

4 the cost of production to the plaintiffs. 18 Finding that the s sought by the plaintiffs were relevant to the dispute and, therefore, discoverable, the court applied an eight-factor balancing test to determine whether the cost of production should be shifted to the plaintiffs (see below). 19 Applying these factors, the court weighed in favor of shifting the costs of production to the plaintiffs. 20 Notably however, the court declined to shift the defendants cost of reviewing the e- mails for privilege and confidentiality concerns, finding that the situation facing a party who retains confidential electronic documents but fails to designate them to specific files is analogous to a company that fails to shred its confidential documents and instead intermingles them with non-confidential, discoverable materials. 21 Subsequent cases have applied the Rowe factors with similar results. 22 However, a recent case from the Southern District of New York, Zubulake v. UBS Warburg LLC (Zubulake I) has modified the Rowe test in what may become the new gold standard for electronic discovery cost shifting disputes. 23 The court in Zubulake I consolidated the first and second Rowe factors, added a third factor addressing the total cost of production, compared to the amount in controversy and eliminated the fourth Rowe factor, creating a revised seven-factor test for cost shifting. 24 These factors, compared alongside the factors outlined in Rowe, are as follows:

5 Rowe Factors the specificity of the discovery requests. the likelihood of discovering critical information. the availability of information from other sources. the purposes for which the responding party maintains the requested data. the relative benefit to the parties of obtaining the information. the total cost associated with production. the relative ability of each party to control costs and its incentive to do so. the resources available to each party. 25 Zubulake Factors 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, compared to the resources available to each party. 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. the relative benefits to the parties of obtaining the information. 26 The Zubulake court also provided guidance as to how electronic discovery disputes should be approached. Indeed, the court advanced a three-step analysis: first, a thorough analysis of the responding party s computer system to determine what information is accessible versus inaccessible, second, a determination as to what data may reside on inaccessible media; and third, the application of the seven cost shifting factors. 27 The court emphasized that cost shifting should only be considered when electronic data is relatively inaccessible and that the seven factors relevant to cost shifting should be weighted unequally and in descending order. 28 Accordingly, the court ordered the defendant to produce at its expense all active data and responsive s residing on its optical disks and active servers. 29 In addition, the court ordered the defendant to produce at its expense responsive documents from five backup tapes (selected by the plaintiff) out of the seventy-seven backup tapes in the defendant s possession in order to

6 determine what information might reside on defendant s backup tapes. 30 The court deferred a final cost-shifting decision until the data on these five tapes could be restored and reviewed and the defendant s costs of production could be ascertained. 31 Following the production of the information recovered from the sample of backup tapes, the court in Zubulake III 32 determined that there was plainly relevant evidence that was only available on the defendant s backup tapes. 33 However, the court also found that the plaintiff was unable to show that there was indispensable evidence on the backup tapes. 34 Applying its sevenfactor cost shifting analysis, the court held that the defendant would remain responsible for 75% of the estimated $165, it would cost to restore all of defendant s backup tapes and that the plaintiff would be responsible for 25% of this cost. 35 The court emphasized that cost shifting only applied to the restoration of the data into accessible form and that once the backup tapes were restored to accessible information, the defendant would remain responsible for all expenses associated with the review and production of the documents. 36 It is still unclear if the Zubulake framework will be widely followed or if courts will continue to address cases on an ad hoc basis. Ad hoc rulemaking produces a mixed bag of results. In one respect, judges are getting involved at an earlier stage of litigation to decide who should bear the cost of discovery, and what the scope of discovery should be. 37 This is, of course, a good thing. Heightened judicial involvement has the potential to streamline the litigation process and make it more efficient. 38 On the other hand, ad hoc rulemaking is inherently unpredictable. 39 These questions are of paramount importance because the cost of digital discovery may become the decisive factor in developing a comprehensive litigation strategy. 40 Until a consistent body of law related to electronic discovery is developed, parties must think strategically to anticipate and address the potential risks.

7 Strategies to Facilitate or Challenge Electronic Discovery THE SEEKING PARTY: GETTING EVERYTHING YOU WANT The party seeking electronic discovery has several objectives. First, the seeking party wants to preserve the maximum amount of relevant electronic information possible. Second, the seeking party wants to craft a sufficiently broad yet focused discovery request. Third, the seeking party wants to maintain a solid chain of custody for all of the electronic evidence obtained. 41 Finally, the seeking party wants to minimize the costs of its electronic production to avoid a cost-shifting motion under Rule 26. Preserving the Maximum Amount of Relevant Electronic Information When a user enters new data, loads new software or performs routine system maintenance, some data may be permanently modified. 42 Indeed, even opening and saving a document to a new location will change some of the document s metadata such as the date of creation or modification. 43 This can be problematic for counsel trying to establish the actual date that a document was first written. Counsel should not assume that a court will allow an invasive examination of an opposing party s hard drive to determine whether a document s metadata has been modified. 44 This is especially true in cases where the seeking party did not seek the preservation of this information in its original discovery request. 45 Consequently, if electronically stored information may be important, the seeking party should serve written notice (the Notice Letter ) on opposing counsel to take immediate action to preserve potentially relevant data. This Notice Letter should contain two parts. 46 The first part of the Notice Letter should outline each type of information to be preserved: such as and information about , 47 data files created by word processing, spreadsheet and other application software; databases and

8 structural information about the databases, network activity logs and audit trails; and electronic calendars, telephone logs and contact managers. 48 This part of the notice should also include all of the places where such data may exist: such as network file servers, mainframe computers, standalone PCs, laptops, workstations, PDAs, off-line storage systems and other removable electronic media. The second part of the Notice Letter should direct opposing counsel to preserve all potentially discoverable data. It should instruct counsel that this data must not be deleted or modified, and that any data-altering procedures not be performed. For instance, no new software, data compression or disk defragmentation should be run or loaded, until there has been an inspection and image copies of relevant hard drives have been made. For system users that may have discoverable information on their computers, there are no additional instructions. For backup systems, the Notice Letter should also request that rotation and reuse of back-up media cease until relevant data is copied and instruct the producing party to set aside and not recycle existing media. Finally, the Notice Letter should request that electronic media storage devices not be disposed of, even in the event of a failure or system upgrade. Crafting the Discovery Requests Although some electronic discovery requests are rejected based on relevance or related grounds, most electronic discovery requests are denied because they impose undue burden and expense. 49 Accordingly, discovery requests should be tailored with this objection in mind and considerable thought should be given as to what information should be sought -- and in what form. For example, the inclusion of existing residual data not deleted from the system may be unnecessary in many cases. Although some courts have approved the use of broad discovery requests, many courts reject a broad request as overly burdensome. 50 As a practical matter, the

9 broader the discovery request, the more difficult and expensive it is to examine the results and the more likely the court will entertain a motion to shift the cost of production to the seeking party. When crafting a discovery request that includes electronic information, it is imperative to have an understanding of the producing party s electronic information system and how it is utilized in order to draft appropriately targeted requests. Accordingly, prior to drafting the discovery request, it may be useful to do some preliminary discovery on the computer system itself. An extremely useful tool to obtain this information is a Rule 30(b)(6) deposition of the producing party s information systems department. 51 This deposition provides the seeking party with the system overview needed to craft a sufficiently targeted discovery request and avoid discovery disputes over the scope of the request. Moreover, by focusing on the custodian of the party s electronic records, the deposition helps to establish the evidentiary foundation needed for using the records at trial. 52 Additionally, information about the location of electronic information can be gleaned through interrogatories and witness interviews. Indeed, every witness should be questioned about his or her computer use, including use of home computers for work-related purposes. Finally, if electronic evidence is going to play a key role in the case, the seeking party should consider retaining one or more experts with knowledge about the technical aspects of electronic discovery. 53 Such experts can (1) assist in the preparation of discovery requests, (2) formulate algorithms to make data-sifting more effective, and (3) offer testimony to bolster a seeking party s motion to compel if more invasive electronic discovery is warranted.

10 Maintaining a Solid Chain of Custody A solid chain of custody is critical to authenticating computer-based evidence and establishing a foundation for admissibility. A chain of custody verifies that information copied was not altered in the copying process and has not been altered during analysis. To ensure that no information is added to the data, and that it remains intact upon inspection, the seeking party must make sure that any hardware or software used to analyze the electronic information is free from viruses or other defects. Moreover, the seeking party should also ensure that original media is write-protected prior to examination or that copies thereof are made. Finally, when copying a hard drive, the seeking party must take steps to ensure that the copy is complete. Accurately copying all drive data requires a sector-by-sector (i.e., image) copy of the drive, which creates a mirror image of the copied drive. All data -- including residual data on the drive s surface -- is captured this way. In contrast, a file-by-file backup captures only active data and may be deemed inadequate for evidentiary purposes. For example, in Gates Rubber Co. v. Bando Chemical Indus., Ltd., 54 the court criticized a party s expert for failing to make an image copy, stating that parties have a duty to utilize the method which would yield the most complete and accurate results. 55 Avoiding or Defending Against Cost-Shifting Motions The seeking party should anticipate that the producing party will object to electronic discovery requests as overbroad and unduly burdensome as this objection is often successful in getting the court to narrow or entirely deny a request. 56 However, if the seeking party knows where the relevant electronic data is located, it will be in a much better position to: (1) narrow the scope of its initial requests; and (2) articulate why the benefits/burden analysis favors production of the desired materials.

11 The seeking party should also anticipate that if the court grants the discovery request, the producing party will ask the court to shift the costs of production to the seeking party. 57 As noted above, courts are well underway in formulating standards by which to determine whether and to what extent costs should be shifted. To prevail under either Rowe s eight-factor costshifting test or Zubulake s seven-factor test, the seeking party must ensure that its discovery requests are focused, reasonable and relevant to the dispute. However, the seeking party should be prepared to pay some of the costs, particularly if substantial 58 or if the discovery request requires the use of a more costly format. 59 THE PRODUCING PARTY: LIMITING THE SCOPE AND VOLUME There are several strategies that the producing party can employ to limit the scope and volume of electronic discovery. First, the producing party should take a proactive approach to discovery and work cooperatively with the seeking party. Second, the producing party can mount legal challenges to discovery requests that are unduly burdensome, costly or otherwise inappropriate under the Federal Rules. Finally, the producing party can reduce the number of documents in existence in advance of litigation by implementing a valid records retention policy and by following sensible document management procedures. Taking a Proactive Approach Taking a proactive approach in discovery positions the producing party more favorably when disputes arise over electronic discovery. Besides, such an approach is arguably mandated by the Federal Rules. Rule 26(f) requires the parties in litigation to confer to develop a proposed discovery plan Courts have held that in the electronic age, this meet and confer should include a discussion on whether each side possesses information in electronic form, whether such information will be produced and in what format. 61 Moreover, Rule

12 26(a)(1)(B) requires the producing party to provide to the seeking party a copy of, or a description by category and location of, all documents, data compilations, and tangible things in the possession, custody, or control of the party that are relevant to disputed facts alleged with particularity in the pleadings. 62 Courts have interpreted this as an affirmative duty of the producing party to provide information sufficient for the seeking party (1) to make an informed decision concerning which documents might need to be examined, at least initially; and (2) to frame their document requests in a manner likely to avoid disagreements resulting from the format of the requests. 63 Moreover, courts punish parties for their failure to cooperate. For example, in Kleiner v. Burns, the court found that defendant Yahoo! failed to comply with Rule 26(a)(1)(B). The court found implausible Yahoo! s contention that it did not have any relevant data compilations in its possession. 64 As a result, the court granted the plaintiff s motion to compel in its entirety and went one step farther by broadly construing the term computerized data to include: Voic messages and files, back-up voice mail files, messages and files, back-up files, deleted s, data files, program files, back-up and archival tapes, temporary files, system history files, web site information stored in textual, graphical or audio format, web site log files, cache files, cookies, and other electronically-recorded information. 65 Moreover, the court further ordered Yahoo! to comply with its order within ten days, reserving the right to impose sanctions. 66 The lesson learned from Kleiner is that defendants who appear to stonewall or fail to make complete responses to discovery requests do so at their peril. The courts can and do penalize recalcitrant parties. 67 On the other hand, producing parties who are proactive and cooperative during the discovery process are likely to find courts more receptive to their concerns when disputes over discovery arise. 68

13 Mounting Legal Challenges to a Discovery Request The producing party can -- and should -- object to inappropriate discovery requests. A party seeking discovery under Rule 26(f) of the Federal Rules must articulate a plausible basis for the belief that discoverable materials exist which would raise a trial worthy issue. 69 As the Rowe and Zubulake factors indicate, in determining whether material is discoverable, the court considers not only whether the material actually exists, but the benefits, burdens and expenses involved in obtaining that material. 70 Producing parties have had success limiting -- or entirely opposing -- electronic discovery requests when they demonstrate that the requests are unduly burdensome, costly and/or nothing more than fishing expedition[s]. 71 However, a producing party should be prepared to back up its claims with evidence, including expert testimony or sworn affidavits. 72 Moreover, the producing party should always argue in the alternative that the court should shift all or part of the costs of production to the seeking party if the court allows discovery of inaccessible data or the cost to produce is high. This will provide incentives for the seeking party to narrowly tailor its requests while reducing the producing party s costs. Note, however, that when the seeking party is required to cover the costs of production, that shift usually has not included the costs of reviewing such documents for privilege, work product and confidentiality concerns. 73 Minimizing the Amount of Discoverable Electronic Information Although it is often to late to take a proactive approach to document retention and management once litigation is on the doorstep, the ability to argue that documents have been destroyed pursuant to a good faith document retention policy 74 helps to limit a fishing expedition for electronically stored information. Counsel can save a company a lot of anguish by encouraging their clients to implement a document retention policy and document management

14 procedures to reduce the amount of unnecessarily stored electronic information prior to the onset of litigation. 75 Conclusion An understanding of the strategies for obtaining and limiting the discovery of electronic information uniquely positions counsel to develop a comprehensive discovery plan and even influence the opposing party s discovery at the onset of litigation. Armed with this understanding, counsel can be more effective in managing electronic discovery and provide added value for their clients. 1 Peter Lyman and Hal R. Varian, How Much Information, 2000 (viewed online at berkeley.edu/research/projects/how-much-info/) (studying electronic information produced by faculty and students at University of California at Berkeley s School of Information Management and Systems). See also Mike Tonsing, Electronic Mail is Ubiquitous and its Consequences are Enormous, 46-MAY FED. LAW. 56 (1999) (discussing how has become common in the workplace). 2 Ashby Jones, What a Mess! NATIONAL LAW JOURNAL at C7 (December 2, 2002); see also Michele C.S. Lange, Sarbanes-Oxley Has Major Impact on Electronic Evidence, THE NATIONAL LAW JOURNAL, viewed online at January 2, 2003 (noting that 93 percent of all business documents [are] created electronically and only 30 percent [are] ever printed to paper ). 3 Active data or data files refers to the information that is available and accessible from users personal computers (or a system s servers) including messages, word processing documents, spreadsheets, databases or calendars. Carey Sirota Meyer & Kari L. Wraspir, E-Discovery: Preparing Clients for (and Protecting Them Against) Discovery in the Electronic Information Age, 26 WM. MITCHELL L. REV. 939, 946 (2000). 4 Metadata or embedded data is data that is automatically created by a software program and can include such information as the creator of a document, when the document was last modified (and by whom), the number of versions of the document, and so forth. At the system level, operating software automatically tracks and maintains information about the use of the system, providing an audit trail about when, where and who accesses the system. Martin H. Redish, Electronic Discovery and the Litigation Matrix, 51 DUKE L.J. 561 at (November 2001). 5 Replicant data is: 1) data that a computer system has automatically recorded which will remain even after the original document has been purged from the system; or 2) information copied to removable media in order to provide users with access to data in the event of a system failure. Meyer & Wraspir, supra note 3, at 946; see also Todd N. Thompson, The Paper Trail Has Gone Digital: Discovery in the Age of Electronic Information, 71-MAR J. KAN. B.A. 16, 17 (March 2002). 6 Residual data is data that has been deleted from the system but continues to reside on the hard drive until it is overwritten by another file. Meyer & Wraspir, supra note 3, at 948; see also Thompson, supra note 5, at 17. Depending on the size and use of the computer system, it may take weeks -- or even months -- to overwrite the space containing the deleted information. Meyer & Wraspir, supra note 3, at Murphy Oil U.S.A., Inc. v. Fluor Daniel, Inc., 2002 WL at *3 (E.D.La. 2002). 8 See Meyer & Wraspir, supra note 3, at 944; see also Anti-Monopoly, Inc. v. Hasbro, Inc., 1995 WL *2 (S.D.N.Y. 1995). 9 See generally Fed. R. Civ. P. 26(b) (West 2002). 10 Fed. R. Civ. P. 34(a) (West 2002). The text of Rule 34 was amended in 1970 to add this language. See id. (1970 Advisory Comm. Notes). 11 See id. (1970 Advisory Comm. Notes).

15 12 See generally, Hon. Shira A. Scheindlin & Jeffrey Rabkin, Electronic Discovery in Federal Civil Litigation: Is Rule 34 up to the Task? 41 B.C.L. REV. 327 (arguing the need for an amendment to Rule 34 to clarify discovery of electronic information); see also Redish, supra note 4 (arguing for a change in the Federal Rules to deal with the costs of electronic discovery). 13 Anti-Monopoly, 1995 WL , at *2. 14 Scheindlin & Rabkin, supra note 12, at As one court explained, It would be a dangerous development in the law if new techniques for easing the use of information became a hindrance to discovery or disclosure in litigation.... The normal and reasonable translation of electronic data into a form usable by the discovering party should be the ordinary and foreseeable burden on a respondent in the absence of a showing of extraordinary hardship. Daewoo Elecs. Co. v. United States, 650 F.Supp. 1003, 1006 (Ct.Int l Trade 1986). Courts generally appear to have been reluctant to force requesting parties to bear the costs of gathering and producing in usable form electronic evidence responsive to a Rule 34 document request. Scheindlin & Rabkin, supra note 12 at (discussing the trend in case law). 16 Rowe Entertainment, Inc. v. The William Morris Agency, Inc., 205 F.R.D. 421 (S.D.N.Y. 2002). 17 Id. at Id. 19 Id. at Id. at Id. 22 For example, applying the Rowe factors the court in Murphy Oil, 2002 WL at *8-*9, similarly required the plaintiff to bear the cost of retrieving discoverable s from backup tapes. However, the defendant had to either: (1) permit plaintiff s experts and outside counsel to review all of the s determined to be responsive; or (2) bear the cost of assembling responsive s and identifying potentially privileged portions. 23 Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 322 (S.D.N.Y. 2003) (Zubulake I). 24 Id. at Rowe, 205 F.R.D. at Zubulake I, 217 F.R.D. at Id. at Id. at 321, Id. 30 Id. 31 Id. 32 Zubulake v. UBS Warburg LLC, 216 F.R.D. 280 (S.D. N.Y. 2003) (Zubulake III). 33 Id. at Id. at Id. 36 Id. at Wendy R. Leibowitz, Digital Discovery Starts to Work, THE NATIONAL LAW JOURNAL at C3 (Nov. 4, 2002). 38 Id. 39 Scheindlin & Rabkin, supra note 12, at ; see also Redish, supra note 4, at Redish, supra note 4, at (discussing the magnitude of the costs of electronic discovery and the potential impact on not only the lawsuit at issue, but society at large). 41 Joan E. Feldman and Rodger I. Kohn, The Essentials of Computer Discovery, 564 PLI/PAT 51, 62 (1999). 42 Id. 43 In some word processing programs (including Microsoft Word and WordPerfect), the date assigned to a document file is automatically modified if the document is called up and saved to another location, thus changing the date assigned to the computer file containing the document text. 44 See, e.g., Fennell v. First Step Designs, Ltd., 83 F.3d 526, 530 (1 st Cir. 1996). In Fennell, the First Circuit affirmed the trial court s denial of plaintiff s request to discover defendant s hard drive despite plaintiff s computer expert s testimony that a key memo had been modified due to the word processing program automatically assigning a new date to the document when it was opened and saved electronically more than two years after the plaintiff argued the document had been created. Id. The court held that the plaintiff, who had failed in her original discovery request to specify whether she wanted an electronic or hard copy version of the memo, did not articulate a plausible basis for the belief that discoverable materials exist which would raise a trial worthy issue. Id. at 532.

16 45 Id.; see also Brunswick, 1996 WL *2 (E.D. Ark. 1996) (rejecting as extremely burdensome plaintiff s request to discover all of defendant s electronic data (including deleted and archived data) for the last five years); but see Playboy Enterprises Inc. v. Welles, 60 F.Supp.2d 1050, 1055 (S.D. Cal. 1999) (allowing plaintiff to make a mirror image of defendant s hard drive to recover deleted s). 46 Feldman & Kohn, supra note 41, at (1999) (discussing the two-part notice and what it should contain); see also Thompson, supra note 5, at Information about includes headers, message contents, and logs of system usage. 48 Feldman & Kohn, supra note 41, at Meyer & Wraspir, supra note 3, at 944 (citing cases). 50 Compare, Kleiner v. Burns, 2000 WL (D. Kan 2000) (approving the use of a broad request for electronic information, granting plaintiff s motion to compel Yahoo! to disclose all voice mails, electronic mail ( ), web sites, web pages, and other electronic data relevant to the above action ); with Brunswick Corp., 1996 WL at *4 (declining to grant plaintiff s motion to compel, noting that [a]n all-encompassing search of all files... deleted in the last five years would clearly be extremely burdensome and, therefore, plaintiff must narrow request to specific documents or make additional showing as to why the benefit would outweigh the burden in producing the documents requested). 51 Some of the information the seeking party will want to obtain includes: (1) System Configuration: the types of computers and other hardware used, operating systems, communications software used, (and whether employees home computers are used to access the system); (2) Application Software and Utilities, including the name and version of all application software and all utilities on the system, both commercial and proprietary; (3) Back-up Procedure and Frequency, including name and version of back-up software used, schedules for incremental and full back ups, how back-up media is indexed and stored, etc.; (4) Log-ons and passwords: encryption programs that may be used to lock sensitive information, who has access to whose log-on and password information, audit trails, and so forth; (5) Personnel: the personnel responsible for ongoing operation, maintenance and expansion of the computer system; (6) Routines (if any) for archiving and purging different types of data; and (7) Third-Party Custodians of electronic information belonging to the producing party. 52 Feldman & Kohn, supra note 41, at Thompson, supra note 5, at Gates Rubber Co. v. Bando Chemical Indus., Ltd., 167 F.R.D. 90 (D. Colo. 1996). 55 Id. at See, e.g., Fennell, 83 F.2d at 534 (affirming district court s decision to deny party access to other party s hard drive in order to investigate the date on which a document had been created or modified); Van Westrienen v. Americontinental Collection Corp., 189 F.R.D. 440, 441 (D. Ore. 1999) (holding that plaintiffs were not entitled to unbridled access to defendants computer system and directing plaintiffs to narrow their requests); Symantec Corp. v. McAfee Assocs., Inc., 1998 W.L at *3-4 (N.D. Cal. 1998) (holding that plaintiff s request for the production of copies of all hard drives that had access to a specific server was unduly burdensome); Strasser v. Yalamanchi, 669 So.2d 1142, (Fla. Dist. Ct. App. 1996) (finding plaintiff s discovery request tantamount to unfettered access to defendant s entire computer system and, therefore, overly broad and unduly burdensome, causing defendant irreparable harm); In re Brand Name Prescription Drug Antitrust Litig., 1995 U.S. Dist. LEXIS 8281, at *7-8 (N.D. Ill. 1995) (narrowing plaintiffs broad discovery requests and requiring parties to agree upon meaningful limitations on scope of search). 57 Although the Supreme Court has stated that the presumption is that the responding party must bear the expense of complying with discovery requests, if the producing party would suffer undue expense and burden, a court may shift some or all of the costs of production to the seeking party. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358 (1978). Producing parties have routinely asked for cost to be shifted in the context of electronic discovery disputes. See, e.g., Sattar v. Motorola, Inc., 138 F.3d 1164, 1171 (7 th Cir. 1998); Rowe, 205 F.R.D. at 421; Murphy Oil, 2002 WL at *1; Anti-Monopoly, 1996 WL at *1; Zubulake I, 217 F.R.D. at Courts appear to construe this broadly, focusing on absolute dollar amounts versus relative costs. For example, in Oppenheimer, the Supreme Court stated that a threshold expense of $16, [can] hardly be viewed as an insubstantial burden, even for a defendant with assets exceeding one-half billion dollars. Oppenheimer, 437 U.S. at ; see also Rowe, 205 F.R.D. at 433 (requiring plaintiffs to bear cost of production of that existed only on defendants hard drives and back up tapes where costs of production were estimated by plaintiffs to be between $158,000 and $236,000); Murphy Oil, 2002 WL (same); Playboy Enterprises, 60 F.Supp.2d at 1054 (requiring party seeking production to pay for scanning of hard drive); Zubulake III, 216 F.R.D. at 291 (allocating 25% of the cost to restore backup tapes to the plaintiff).

17 59 See, e.g., Sattar, 138 F.3d at 1171 (affirming district court s decision to allow defendant to download 210,000 e- mail messages into a readable format disk versus printing out the same, or alternatively requiring defendant and plaintiff to split the cost of paper printouts); Anti-Monopoly, 1996 WL at *2-*3 (rejecting plaintiff s argument that it was too impoverished to bear defendant s costs of creating computer programs used to extract requested data from the defendant s databases); Williams v. E.I. du Pont de Nemours & Co., 119 F.R.D. 648, (W.D.Ky. 1987) (where party provided data to E.E.O.C. in hard-copy form, which the E.E.O.C. entered into computer files, party required to pay a reasonable share of the costs that the E.E.O.C. incurred in formulating the database). 60 Fed. R. Civ. P. 26(f) (West 2002). 61 See e.g., In re Bristol Myers Squibb Securities Litigation, 205 F.R.D. 437, 444 (D. N.J. 2002). 62 Fed. R. Civ. P. 26(a)(1)(B) (as cited in Kleiner v. Burns, 2000 WL *1, *4 (D. Kan. 2000)). 63 See Kleiner, 2000 WL at *3; see also Brunswick, 1996 WL at *4. 64 See Kleiner, 2000 WL at *3. 65 Id. 66 Id. at *4. 67 See e.g., Crown Life Ins. Co. v. Craig, 995 F.2d 1376 (7 th Cir. 1993) (entry of default judgment against insurer appropriate where insurer failed to produce a database containing raw data that pertained to commissions, even when the data did not exist in hard copy form and plaintiff had requested written documents ); In re Prudential Ins. Co. of Am. Sales Practices Lit., 169 F.R.D. 598, (D. N.J. 1997) (party sanctioned for persistent and recurrent destruction of relevant electronic data). 68 See, eg., Sattar, 138 F.3d at 1171 (noting defendant gave plaintiff three different alternatives for the production of requested electronic data and affirming the district court s denial of plaintiff s motion to show cause based upon its assessment of the credibility of [defendant s] lawyers ); Brunswick, 1996 WL at * 2 (refusing to deny plaintiff s motion to compel broad electronic discovery where defendant s refusal to have meaningful discussions to explore solutions is preventing a resolution of the issues). 69 Fennell, 83 F.3d at Rowe, 205 F.R.D. at 429; Zubulake I, 217 F.R.D. at 333; see also, Fennell, 83 F.3d at 532; see also Playboy Enterprises, 60 F.Supp.2d at 1054 (noting court must balance such factors as the needs of the case, the amount in controversy, the importance of the issues at stake, the potential for finding relevant material and the importance of the proposed discovery in resolving the issues). 71 See e.g., Brunswick, 1996 WL at *3 (declining to grant plaintiff s discovery request because it was unduly burdensome ); Fennell, 83 F.3d at 531 (denying plaintiff s discovery request because it was extremely cumbersome and expensive ). 72 Sattar, 138 F.3d at 1171 (relying in part on sworn affidavits); Murphy Oil, 2002 WL at *3-*4 (discussing expert s estimate of costs); Brunswick, 1996 WL at *3 (discussing the need for expert involvement). 73 Rowe, 205 F.R.D. at 432; Murphy Oil, 2002 WL at *8; Zubulake III, 216 F.R.D. at See Lewy v. Remington Arms, 836 F.2d 1104 (8th Cir. 1988) (discussing factors to be considered when assessing whether a document retention policy is legally sufficient); See also, Patrick Grady, Discvoery of Computer Stored Documents and Computer Based Litigation Support Systems: Why give up more than necessary? 14 J. MARSHALL J. COMPUTER & INFO. L. 523, 524 (1996); Thompson, supra note 5 at 20; Meyer & Wraspir, supra note 3 at See e.g., Jones, supra note 2, at C6.