Wiginton v. CB Richard Ellis, Inc.
229 F.R.D. 568 (N.D. Ill. 2004)
The Parties
• Plaintiffs: Wiginton
▫ A large collection of
employees at CBRE
that are alleging a
nationwide pattern of
the hostile work
environment prevalent
at all the offices of
CBRE
• Defendant: CB Richard
Ellis, Inc.
▫ Per their website they
call themselves the
“global leader in real
estate services”
▫ They are an
enormously large
corporation with offices
around the world
Facts
• P filed a class action claim for a nationwide practice of sexual
harassment
▫ In this case they were seeking discovery of pornographic material
that they claim was distributed electronically and displayed on
computers in offices
• During discovery, D produced 94 monthly backup tapes from 11
offices
▫ Kroll Ontrack was hired to restore and extract the emails
• After an initial analysis of the selection of tapes, Kroll produced a
review set of 17,375 documents and a revision of the estimate to
review the documents increased to $249,000
▫ Each side manipulated the numbers of responsive documents to serve
their respective position, HOWEVER they ended up effectively agreeing
that there were 567 responsive documents from the 8,660 total
documents to equal a 6.5% responsive rate
Affected Rules
• FRCP 26(b)(2)(iii)
▫ This rule allows for the court to limit discovery if it
is determined that the burden of discovery
outweighs its likely benefit
• FRCP 26(c)
▫ This responding parties from unduly burdensome
or expensive discovery requests
Analysis
• Application of the Eight Factors (Zubulake +1)
1.
Likelihood of Discovery Critical Information

8 term search resulted in 8,660 hits, and P have identified 567 documents
being responsive (6.5% response rate)
2.
The Availability of Such Information from Other Sources

Relevant info on the backup tapes only available through restoring and
searching the tapes

However since there was a large number of unresponsive documents this
weighs in favor of cost shifting
3.
The Amount in Controversy, as Compared to the Total Cost of Production

Even though the award could be very high (whether as a CA or not) the fact
that it will cost several hundred thousand dollars for one limited part of
discovery is substantial and weighs in factor of cost shifting
4.
The Parties’ Resources, as Compared to the Total Cost of Production

Plaintiffs at a serious resource disadvantage to a company that had net
revenues of 1.6 billion dollars in 2003
5.
The Relative Ability of each Party to Control Costs and its Incentive to do so

B/c of P’s claim their discovery request must be broad thus there is not
much of an incentive to keep costs low
Analysis
• Application of Eight Factors (cont.)
6.
The Importance of Issues at Stake in the Litigation

7.
This factor rarely comes into play and in citing Zubulake
“discrimination in the workplace is hardly unique”
The Importance of the Required Discovery in Resolving
the Issues at Stake in the Litigation (The +1 to Zubulake)



Parties disagree on relevance on pornographic material that
may have been circulating through the offices
Court held that when relevance is in doubt, the court should
err on the side of permissive discovery
However, the court believed there was other evidence to
support the plaintiff’s claim thus this factor weighs slightly in
favor of cost shifting
8. The Relative Benefits to the Parties in Obtaining the
Information

Least important factor because the requested information is
always more likely to benefit the requesting party
Issues Regarding eDiscovery
• At what point should the percentage response rate
favor cost shifting? Is 6.5% low enough, especially in
a case of nationwide harassment in several offices?
• Was the sampling method fair? Is allowing the
plaintiff to only pick 4 sampling keywords enough?
Was Plaintiff prejudiced?
• Regarding the added factor, is it appropriate at early
stage of discovery to give the court power to judge
the importance of the requested discovery?
Conclusions
• Even with the presumption that the responding
party pays for discovery costs, the factors favor
cost-shifting
▫ Found that CBRE should bear 25% and Wiginton
75% of the discovery costs of restoring tapes,
searching the data, and transferring it to an
electronic data viewer
▫ Each party will also bear their own costs of
reviewing the data and printing documents, where
necessary
Two Questions
• Do you think it was fair that the court put a limit
on the number of search terms that could be
used searching the documents? Is 4 enough,
especially so early in discovery?
• Do you agree with the added factor used in this
case? Does/will it make cost shifting more
common?