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Managing Complex Litigation 2007: Legal Strategies and Best Practices in “HighStakes” Cases
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E-MAIL AND DOCUMENT PRODUCTION
IN NATIVE FORMAT
J. Michael Rediker
Haskell Slaughter Young & Rediker LLC
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E-MAIL AND DOCUMENT PRODUCTION IN NATIVE FORMAT
J. Michael Rediker
Haskell Slaughter Young & Rediker LLC
2
E-mail and Document Production in “Native Format”
Introduction: in early years of document production after electronic mail (“e-mail”) came
into general business usage, retrieval and production of e-mail in any form was not nearly
as convenient as it now can be, and e-mail was generally produced by litigants in the
form of hard copy prints of “strings” of related e-mails, and any attachments to e-mails
were also produced as hard copy print-outs. (For purposes of the following discussion,
production in "TIFF" image format or PDF format is deemed equivalent to hard
photocopy production, both in technical effect and in cost.) As software and techniques
improved, and counsel also learned the meaning and significance of embedded data
(“metadata”) in each piece of e-mail that you cannot “see” in a hard copy print-out, as
well as the value of directly accessing e-mail attachments in their respective “native”
software formats, such as an Excel spreadsheet (where you can see all the ranges,
including hidden ranges, and the formulas), many counsel have sought production of email, with their attachments, in “native” format, just as they would be viewable on the
originator’s own computer. Recognizing the major knowledge improvements gained by
access to e-mails in native format, over what can be learned by viewing only hard copy
print-outs of e-mails, many litigants have stoutly resisted production of e-mails in native
format, raising a plethora of objections listed below. The law is still in a state of
development for this area of document production.
1.
Outline of Advantages of Native Format Production over Hard Copy (or
TIFF Image) Production
a.
Ability to view embedded metadata, and the origination, author, tracking
and authentication information that can be learned from metadata.
b.
Ability to view and analyze all attachments in their respective software
formats; and to determine precisely which attachments belong to specific e-mails.
c.
of e-mails.
Ability to determine the extent of, and see, the entirety of a string or chain
d.
Minimizes the opportunity for a producing party, whether inadvertently or
otherwise, to separate pieces of e-mail chains or strings, or to separate the attachments
from the transmitting e-mail, or to put the wrong attachment with an e-mail print-out, or
to leave out part of a reply or chain of e-mail communications, or to omit an attachment.
e.
Great ease, facility and speed of word and phrase searching through a
mass of e-mails produced in native format, using a variety of software and techniques,
which simply cannot be done if the e-mails are only produced in hard copy form.
f.
Very large caches of e-mails can be conveniently stored and transported
on a computer laptop in electronic, native format, then individual e-mails and/or their
attachments can be printed out on an as-needed basis.
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g.
Counsel can “see” the e-mails in the chronological sequence in which the
witness received them, and in any folders to which the witness may have assigned them
after receipt.
h.
E-mails in native format can be rapidly retrieved and sorted by date, or
sender, or recipient, for analytical purposes, electronically doing in seconds what could
take hours or days to do by hand with hard copy print-outs.
i.
Cutting and pasting information into counsel’s outlines, or into briefs,
from documents in native format, and attachments in native format, is greatly facilitated.
j.
Production in native format eliminates the need for expensive and bulky
Optical Character Recognition (“OCR”) scans of hard copies, which producing parties
have traditionally used.
k.
Production in native format results in an entirely accurate reproduction of
a documents, e-mails, and any attachments (also in native format), which OCR scanning
of hard copies cannot and does not guarantee.
l.
Access to e-mail caches in native format usually allows viewing and
ascertainment of who received “BCC” or blind copies of e-mails. By contrast, the
printing out of e-mails off an addressee’s (“To” or “CC”) computer (instead of the
Author’s computer) does not show you “BCC” or blind copy recipients.
2.
Traditional objections that have been made to Native Format Production;
and some responses (leaving aside the impact of recent changes to the Federal Rules,
see infra).
a.
It is claimed that it is more expensive. (Actually, if native format
production is agreed to or ordered from the outset, before production commences, see,
amended FRCP Rule 34(b)(iii), it is generally considerably less expensive to handle
production in electronic form. The “key” is to broach and resolve the issue of native
format production before the hard copy production commences.)
b.
Authenticity problems: e-mails or e-mail chains, or attachments, can be
altered, thus posing problems of verification and checking before an e-mail is acceptable
for use as an exhibit. (Of course, hard copies can be altered just as easily, if someone had
a mind to do so. Producing parties usually create a “reference set” and any alterations of
digital mail can be detected fairly easily from embedded metadata and/or simple side-byside comparison. Sometimes litigants store the e-mail caches with a third party service
provider in a form or web site which prevents or detects alterations.)
c.
Hard copies can easily be bates numbered; native format e-mails, by their
nature, are not bates numbered. (Counsel can agree, in native format production, to a
variety of methods of identification, such as some form of electronic tagging or indexing,
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or creating a single hard copy reference set which is bates numbered, or only printing out
and bates numbering the e-mails from the cache that a party agrees by a date certain will
be designated for possible use as exhibits, etc.).
d.
It is burdensome and onerous to review e-mails in native format for
privileged communications, and especially to do so “on screen” as opposed to working
with hard copy print-outs. (Actually, it is faster and usually more accurate and
comprehensive, to review e-mails in native format for privileged communications,
because - in addition to the ability to view them e-mail-by-e-mail on screen, or print them
out and make such review - counsel and the client in advance of production can run
electronic name searches and key word searches through the cache, to pick up potential
privileged items.)
e.
Requested discovery of e-mail is often very comprehensive and intrusive,
involving a large number of employee workstations and servers, and is disruptive to
ordinary business operations. (But that is also true for e-mail production to be made in
hard copy form.)
f.
Many companies do not have e-mail retention guidelines or controls, and
key e-mails may have been automatically dropped, purged or archived and later
discarded, from various workstations. (But that is also true for e-mail production to be
made in hard copy form.)
It is clear that under the December 1, 2006 amendments to the Federal Rules,
summarized in the following section, many, if not most, of the above objections go away
insofar as being excuses to avoid native format production. For example, Rule 34 now
clearly permits a requesting party to specify production of e-mails and other
electronically stored data in their native or original software formats. As a tradeoff, many
of the traditional means of resisting native format production now will have to be
couched in the form of objections under Rule 34 and requests for narrowing or limitation
of discovery, and protective orders, or requests for cost-shifting, under revised Rule
26(b)(2).
3.
December 2006 changes to Federal Rules of Civil Procedure, and Subsequent
rule-making activity; rights to “native format” production recognized.
Note: a full review of this complex subject would entail an entire separate panel session;
therefore, only a summary will be furnished here. The new provisions relating to
electronic discovery added to the Federal Rules do not resolve all the differences of
opinion and approach, nor address each of the practical concerns mentioned in section 2
above, thus leaving room for negotiation, innovation and, in the absence of stipulation or
agreement, court adjudication. Detailed information on rules changes and the summary
of the Committee on Rules of Practice and Procedure of the Judicial Conference of the
United States can be found at http://www.uscourts.gov/rules/congress0406.html. The
following convenient summary is adapted in modified form from one provided by LexisNexis on an open web site
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(https://www.lexisnexis.com/applieddiscovery/lawLibrary/courtRules.asp) which has
relevant links to more detailed information available at www.uscourts.gov:
Provisions in Federal Rules of Civil Procedure:

Rule 16(b)(5)& (6): Pretrial Conferences, Scheduling Management.
A scheduling order entered under this rule can include provisions for disclosure or
discovery of electronically stored information and permit the parties to reach
agreements for asserting claims of privilege or protection as trial-preparation
material after production.

The 2006 Advisory Committee Note points out, “[t]he amendment to Rule
16(b) is designed to alert the court to the possible need to address the
handling of discovery of electronically stored information early in the
litigation if such discovery is expected to occur.”

Rule 26(a)(1)(B): General Provisions Governing Discovery; Duty of
Disclosure; Required Disclosures; Methods to Discover Additional Matter.
This rule requires that parties, without awaiting a discovery request, provide to
other parties a copy of, or description by category and location of, electronically
stored information.

Rule 26(f)(3) & (4): General Provisions Governing Discovery; Duty of
Disclosure; Conference of Parties; Planning for Discovery.
This rule requires that parties, in their initial planning conference, discuss and
develop a discovery plan addressing, among other things, issues relating to
preserving discoverable information and any issues related to disclosure or
discovery of electronically stored information. This includes the form or forms in
which electronically stored information should be produced, and any issues
relating to claims of privilege or protection as trial-preparation material. If the
parties agree on a procedure to assert such claims after production, the parties
should discuss whether to ask the court to include this agreement in an order.

As with Rule 16(b), the 2006 Advisory Committee Note to Rule 26(f)
emphasizes the need for electronic discovery issues to be addressed in
detail and very early in the case, and speaks to the need for counsel to
become familiar with their client’s information systems before such
conference.

Form 35: Report Parties Planning Meeting.
The form adds a brief description of the parties' proposals for handling the
disclosure or discovery of electronically stored information.

Rule 26(b)(2)(B): General Provisions Governing Discovery; Duty of
Disclosure; Discovery Scope and Limits; Limitations.
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The rule provides that a party need not provide discovery of electronically stored
information from sources that the party identifies as not reasonably accessible
because of undue burden or cost. On both a motion to compel discovery or for a
protective order, the burden is on the responding party to show that the
information is not reasonably accessible because of undue burden or cost. Even if
that showing is made, the court may nonetheless order discovery from that party if
the requesting party shows good cause, considering the limitations that are set
forth in Rule 26(b)(2)(C) (i.e. whether the discovery sought is cumulative, burden
of expense outweighs the benefit, etc.). The court may also specify conditions for
the discovery.

The 2006 Advisory Committee Note to this amended provision states,
“[u]nder this rule, a responding party should produce electronically stored
information that is relevant, not privileged, and reasonably accessible,
subject to the (b)(2)(C) limitations that apply to all discovery. The
responding party must also identify, by category or type, the sources
containing potentially responsive information that it is neither searching
nor producing. The identification should, to the extent possible, provide
enough detail to enable the requesting party to evaluate the burdens and
costs of providing the discovery and the likelihood of finding responsive
information on the identified sources.”

Rule 26(b)(5)(B): General Provisions Governing Discovery; Duty of
Disclosure; Discovery Scope and Limits; Claims of Privilege or Protection of
Trial Preparation Materials; Information Produced.
This rule provides that if information is produced in discovery that is subject to a
claim of privilege or protection as trial-preparation material, the party making the
claim may notify any party that received the information of the claim and the
basis for it. After being notified, a party is required to promptly return, sequester,
or destroy the specified information and any copies it has and may not use or
disclose the information until the claim is resolved. A receiving party may
promptly present the information to the court under seal for a determination of the
claim. If the receiving party disclosed the information before being notified, it
must take reasonable steps to retrieve it. The producing party is required to
preserve the information until the claim is resolved.

Rule 33(d): Interrogatories to Parties; Option to Produce Business Records.
This rule provides that where the answer to an interrogatory may be derived from
electronically stored information, and the burden of deriving the answer is
substantially the same for the responding party and the requesting party, it is a
sufficient answer to the interrogatory to specify the records from which the
answer may be derived or ascertained. The responding party must allow the
requesting party reasonable opportunity to examine, audit of inspect such records
and make copies, compilations, abstracts or summaries.
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

The 2006 Advisory Committee Notes point out, among other things, that,
“[d]epending on the circumstances, satisfying these provisions with regard
to electronically stored information may require the responding party to
provide some combination of technical support, information on
application software, or other assistance. … A party that wishes to invoke
Rule 33(d) by specifying electronically stored information may be
required to provide direct access to its electronic information system, but
only if that is necessary to afford the requesting party an adequate
opportunity to derive or ascertain the answer to the interrogatory.”
Rule 34(a) & (b): Production of Documents, Electronically Stored
Information, and Things and Entry Upon Land for Inspection and other
Purposes; Procedure.
This rule provides that any party may serve on any other party a request to
produce electronically stored information. The rule would also permit the party
making the request to inspect, copy, test or sample electronically stored
information stored in any medium from which information can be obtained translated if necessary by the responding party into a reasonably usable form. The
rule provides that the request may specify the form or forms in which
electronically stored information is to be produced. The producing party may
object to the requested form or forms for producing electronically stored
information stating the reason for the objection. If an objection is made to the
form or forms for producing electronically stored information - or no form was
made in the request - the responding party would be required to state the form or
forms it intends to use. If a request does not specify the form or forms for
producing electronically stored information, a responding party must produce the
information in a form or forms in which it is ordinarily maintained or in a form or
forms that are reasonably usable. A party need not produce the same
electronically stored information in more than one form.

As the 2006 Advisory Committee Note to Rule 34(b) now recognizes,
“native format” production may be specified by a requesting party for
electronically stored information, especially so as to permit the requesting
party to take advantage of computer search features of electronic data:
“[t]he amendment to Rule 34(b) permits the requesting party to designate
the form or forms in which it wants electronically stored information
produced. The form of production is more important to the exchange of
electronically-stored information than of hard-copy materials … The rule
recognizes that different forms of production may be appropriate for
different types of electronically stored information. Using current
technology, for example, a party might be called upon to produce word
processing documents, e-mail messages, electronic spreadsheets, different
image or sound files, and material from databases. … The rule therefore
provides that the requesting party may ask for different forms of
production for different types of electronically stored information. …
Stating the intended form before the production occurs may permit the
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parties to identify and seek to resolve disputes before the expense and
work of production occurs. … If the form of production is not specified
by party agreement or court order, the responding party must produce
electronically stored information either in a form or forms in which it is
ordinarily maintained or in a form or forms that are reasonably usable. …
If the responding party ordinarily maintains the information it is producing
in a way that makes it searchable by electronic means, the information
should not be produced in a form that removes or significantly degrades
this feature.”

Rule 37(f): Failure to Make Disclosures of Cooperate in Discovery Sanctions;
Electronically Stored Information.
This section of Rule 37 provides that absent exceptional circumstances, a court
may not impose sanctions under the rules on a party for failing to provide
electronically stored information lost as a result of the routine, good faith
operation of an electronic information system.


The “good faith” requirement of this provision should be construed to
require imposition of a “litigation hold” on electronically stored
information which, but for such litigation hold, would otherwise be purged
or discarded. The 2006 Advisory Committee Notes state, in relevant part,
“[g]ood faith in the routine operation of an information system may
involve a party’s intervention to modify or suspend certain features of that
routine operation to prevent the loss of information, if that information is
subject to a preservation obligation. A preservation obligation may arise
from many sources, including common law, statutes, regulations, or a
court order in the case. The good faith requirement of Rule 37(f) means
that a party is not permitted to exploit the routine operation of an
information system to thwart discovery obligations by allowing that
operation to continue in order to destroy specific stored information that it
is required to preserve. When a party is under a duty to preserve
information because of pending or reasonably anticipated litigation,
intervention in the routine operation of an information system is one
aspect of what is often called a ‘litigation hold.’”
Rule 45 Subpoena; Form; Issuance.
This rule adds that a subpoena shall command each person to whom it is directed
to attend and give testimony or to produce and permit inspection, copying, testing,
or sampling of among other things, electronically stored information. In addition,
a subpoena may specify the form or forms in which electronically stored
information is to be produced. Subpoenas may be served to not only inspect
materials but to copy, test or sample those materials. Similarly to Rule 34, if a
subpoena did not specify the form or forms for producing electronically stored
information, a responding party is required to produce the information in a form
or forms in which it is ordinarily maintained or in a form or forms that are
reasonably usable; and a party need not produce the same electronically stored
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information in more than one form. As in Rule 26(b)(2)(B), a party need not
provide discovery of electronically stored information from sources that the party
identifies as not reasonably accessible because of undue burden or cost. On both a
motion to compel discovery or for a protective order, the burden is on the
responding party to show that the information is not reasonably accessible
because of undue burden or cost. Even if that showing is made, the court may
nonetheless order discovery from that party if the requesting party shows good
cause, considering the limitations that are set forth in Rule 26(b)(2)(C) (i.e.
whether the discovery sought is cumulative, burden of expense outweighs the
benefit, etc.). The court may also specify conditions for the discovery. Similarly
to Rule 26(b)(5)(B), if information is produced in response to a subpoena that is
subject to a claim of privilege or protection as trial-preparation material, the party
making the claim may notify any party that received the information of the claim
and the basis for it. After being notified a party would be required to promptly
return, sequester, or destroy the specified information and any copies it has and
may not use or disclose this information until the claim is resolved.
Proposed Rule of Evidence 502
In April 2007, the Advisory Committee on Evidence Rules approved Rule 502, a
proposed amendment to the Federal Rules of Evidence. The amendment was proposed to
address some of the issues raised by the effect of disclosure of attorney client and work
product materials, in light of the costs of reviewing the volume of electronic information
now being produced in litigation. The purpose of the rule is also to resolve the concern
that any disclosure of protected information will operate as a subject matter waiver. See
Hopson v. Mayor, 2005 U.S. Dist. LEXIS 29882 (D. Md. 2005), cited again below. The
Rule is discussed in detail as an “action item” in the May 15, 2007 Report of the
Advisory Committee on Evidence Rules. See
http://www.uscourts.gov/rules/Reports/EV05-2007.pdf
The Advisory Committee states that it will transmit Rule 502 to the Committee on Rules
of Practice and Procedure with its recommendation that the proposed rule be approved
and transmitted to the Judicial Conference for its consideration.
Under the proposed rule, the disclosure of the attorney client or work product protected
material does not operate as a waiver in a state or federal proceeding if the disclosure was
inadvertent and made in connection with federal litigation or administrative proceedings
and if the holder of the privilege took reasonable precautions to prevent disclosure and
took reasonably prompt measures once the holder knew or should have known of the
disclosure, to rectify the error, following the procedures in FRCP 26(b)(5)(B). In
addition, in a federal or state proceeding, a disclosure of attorney client or work product
privileged material when made to a federal public office or agency in the exercise of its
regulatory authority does not operate as a waiver of the privilege in favor of nongovernmental persons or entities. The effect of disclosure to a state or local government
agencies, however, is governed by applicable state law. The rule does not limit or expand
the authority of a government agency to disclose communications or information to other
governmental agencies. A federal court order concerning preservation or waiver of
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privilege (in, for example, such agreements as "claw-back" or "quick peek" agreements)
governs in federal or state proceedings-- even as to third parties. Agreements between the
parties but not subject to a court order govern the parties to the agreement, but not third
parties.
4.
Suggestions for Making a Native Format Production Request for
Electronically Stored Information
a.
Definitions. Definitions of sufficient breadth to accomplish your client’s
discovery needs and goals should be incorporated into the discovery request, including
definitions for “electronically stored information” and “information systems” and “native
format” (or such alternative equivalent phrase as counsel may choose). At a minimum,
“electronically stored information” should include: word processing documents; other
documents; e-mail messages and any attachments to such messages; electronic
spreadsheets; image files; video files; audio or sound files; presentations (e.g., Microsoft
Powerpoint files); and databases. “Native format” generally means and refers to the
original format of a type of electronically stored information in which such information
was embodied at the time it was created by the software application used to create it;
however, if you intend to specify a particular data format other than the original format
used by the software application that created it, the definition of “native format” should
be modified accordingly; see “b” below. You may wish to create definitions for “hard
copy” format and “image” format.
b.
Specify the Format. It is critical under the amended Rules for the
requesting party to include, from the first moment of making a discovery request, a
specification of the computer file format of the data being requested. Examples of such
specification might be: Microsoft Excel, for electronic spreadsheets; Microsoft Word or
WordPerfect, for word processing files; Microsoft Outlook “pst” format for e-mail;
Microsoft Office Access for databases; and so forth. With regard to e-mail, it is
preferable to specify that “native format” be considered as a “pst” format file, if you plan
to use Microsoft Outlook to review, search, sort or display such e-mail. If, for e-mail,
you plan to use other forms of software than Microsoft Outlook, such as litigation support
software, you may wish, instead, to specify that e-mail be output by the producing party
in a different format than a “pst” file, using the format which is compatible with the data
loading method called for by such litigation software. Note that Microsoft Outlook also
has an “export” function allowing export to other formats such as comma separated
values (useful for exporting databases of “contacts” information). If instead of “native”
or computer file format, your need is for “hard copy” or “Tiff” image or “JPEG” image
format, that, too, should be specified. Rule 34 only requires the responding party to
produce in one format, so advance planning and specification of particular format on the
front end is critical.
c.
Earliest possible specification. At the earliest stage of a case, before the
opposing party has embarked upon expenditure of time and money, counsel should use
the initial Conference under Rule 26, or informal discussion, to learn about the types of
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information systems involved and the types and native formats of electronically stored
information involved, and then frame the initial discovery requests so as to address such
types of information systems and electronically stored information. The Rules allow the
requesting party, in a way not previously afforded, the right to specify production
formats, but if the requesting party does not do so promptly and in a timely manner,
before discovery production work commences, that advantage under the amended Rules
is lost.
d.
Avoid need for cost-shifting. Be careful what you ask for; it may wind up
embroiling you in a lengthy fight and delay over cost-shifting and end up costing you a
considerable amount of money. Using the Advisory Committee Notes’ seven guidelines
to Rule 26(b)(2)(C), supra, and the Zubulake guidelines, supra, as planning tools, design
a narrower, focused, supportable, case-specific, demonstrably relevant discovery request,
than the very broad version you might otherwise have used in a case involving solely
“hard copy” document production. Computer databases and computer backup files are
often incredibly huge, and usually contain large masses of information not truly needed to
prosecute or defend the litigation at hand. The goal, through discussion with the
responding side, is to design a search and sorting process, which may even work in
phases or stages, on a cost-effective basis, so as to target the portions of the backup files
and databases or e-mail caches that more likely contain what you really need.
5.
Costs attendant upon electronic discovery; other issues.
a. The party of whom electronic discovery is requested often seeks cost-shifting to
the requesting party. Courts have in recent years been developing guidelines for defining
when some cost-shifting should occur, and to what extent. It is generally preferable to
resolve such matters by negotiation and stipulation; such a resolution becomes easier
when the obligation to produce in native electronic format is reciprocal, and the scope of
the requests for data is pared to achievable, reasonable parameters, often by means of
using an agreed set of “search terms” for electronic search and screening.
(i)
The normal principle is that each party bears its own costs of responding
to discovery. Cf., Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358 (1978)
(“Under those [discovery] rules, the presumption is that the responding party must
bear the expense of complying with discovery requests, but he may invoke the
district court's discretion under Rule 26(c) to grant orders protecting him from
‘undue burden or expense’ in doing so, including orders conditioning discovery
on the requesting party's payment of the costs of discovery.”); Rowe
Entertainment, Inc. v. The William Morris Agency, Inc., 205 F.R.D. 421, 428-29
(S.D.N.Y. 2002) (holding, among other things, that plaintiffs would be required to
bear the costs of producing e-mails from back-up tapes and hard drives; but if any
defendant elected to conduct a full privilege review of its e-mails prior to
production, that defendant would conduct such review at its own expense).
(ii)
Since “undue burden” under Rule 26(c) is determined on a case-by-case
basis, Medtronic Sofamor Danek, Inc. v. Michelson, 229 F.R.D. 550, 553
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(W.D.Tenn. 2003), citing, Bills v. Kennecott Corp., 108 F.R.D. 459, 463 (D.Utah
1985), courts have generally considered a number of factors in weighing whether
to shift some part of or all of the discovery (in this case, electronic discovery)
from the responding party to the requesting party. The newly-amended Rule
26(b)(2)(C) requires, in its text, a weighing of factors such as “the needs of the
case, the amount in controversy, the parties’ resources, the importance of the
issues at stake in the litigation, and the importance of the proposed discovery in
resolving the issues.” As shown further below, the 2006 Advisory Committee
Notes to Rule 26(b)(2)(C) provide more detailed factors as guides.
In one of the earlier efforts at defining relevant factors for cost-shifting
determinations in electronic discovery, Medtronic, supra, suggested the following
factors, citing Rowe Entertainment, supra: (1) the specificity of the discovery
requests; (2) the likelihood of discovering critical information; (3) the availability
of such information from other sources; (4) the purposes for which the responding
party maintains the requested data; (5) the relative benefit to the parties of
obtaining the information; (6) the total cost associated with the production; (7) the
relative ability of each party to control costs and its incentive to do so; and (8) the
resources available to each party. In Medtronic, for example, after analyzing all
eight factors, the decision found that some cost-shifting was warranted, and that
defendant should bear part of the expense of electronic discovery, where the
defendant sought 996 network backup tapes from plaintiff containing not only email but also 300 gigabytes of other electronic data not in a backed-up format.
The Southern District of New York in a subsequent electronic discovery
decision, Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 316-317 (S.D.N.Y.
2003) (often known as “Zubulake I”), found that the Rowe analysis omitted
certain relevant factors and suggested a modified 7-factor set of guidelines for
evaluating whether cost-shifting should occur in electronic “native format”
discovery, and stated that such factors should not be weighted equally. The
Zubulake factors were:
1. The extent to which the request is specifically tailored to discover
relevant information;
2. The availability of such information from other sources;
3. The total cost of production, compared to the amount in controversy;
4. The total cost of production, compared to the resources available to
each party;
5. The relative ability of each party to control costs and its 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.
Other courts have generally found Zubulake to be persuasive in this
regard, in native format electronic discovery cases, see, e.g., Hagemeyer North
America, Inc. v. Gateway Data Sciences Corp., 222 F.R.D. 594 (E.D.Wis. 2004);
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OpenTV v. Liberate Technologies, 219 F.R.D. 474 (N.D.Cal. 2003); Wiginton v.
CB Richard Ellis, Inc., 229 F.R.D. 568 (N.D. Ill. 2004) (adding to the Zubulake
factors another which “considers the importance of the requested discovery in
resolving the issues of the litigation”); Quinby v. WestLB AG, 2005 WL 3453908
(S.D.N.Y. Sep. 5, 2006); In re Veeco Instruments, Inc. Securities Litigation, 2007
WL 983987 (S.D.N.Y. Apr. 2, 2007) (describing Zubulake as “set[ting] forth a
widely followed standard for determining when cost shifting is appropriate” in
electronic discovery); W.E. Aubuchon Co. v. Benefirst, LLC, 2007 WL 1765610
(D.Mass. Feb. 6, 2007) (finding that the 2006 amendments to FRCP Rule 26 “to a
large degree adopt Judge Scheindlin’s seven-step analysis” in Zubulake);
Semsroth v. City of Wichita, 239 F.R.D. 630 (D.Kan. Nov. 15, 2006) (noting that
“[t]he similarity between these [Rule 26(b)(2)] considerations and the factors in
Zubulake I is readily apparent.”).
The 2006 Advisory Committee Notes to revised Rule 26(b)(2)(C) now
identify the following “appropriate considerations” that may be weighed in a costshifting analysis:
(1) the specificity of the discovery request;
(2) the quantity of information available from other and more easily
accessed sources;
(3) the failure to produce relevant information that seems likely to have
existed but is no longer available on more easily accessed sources;
(4) the likelihood of finding relevant, responsive information that cannot
be obtained from other, more easily accessed sources;
(5) predictions as to the importance and usefulness of the further
information;
(6) the importance of the issues at stake in the litigation; and
(7) the parties' resources.
It is reasonable to conclude that the current state of the law is that cost-shifting,
with respect to electronic discovery, is not required or even the norm, but that this matter
requires a case-by-case, fact-specific determination and, in the absence of agreement of
the parties, the courts may upon motion consider an order to shift some of the costs,
under amended Rule 26(b)(2), and in that event at least seven suggested factors should be
considered.
b. Mutually agreed protocols for native format production, including cost-bearing,
are essential, and should be negotiated at the earliest stage of discovery planning and
scheduling order drafting.
c. Again, agreement is most easily reached on native format production issues when
obligations, conditions and terms are reciprocal, applicable to all parties, and when the
parties make sincere, creative efforts to understand the information systems involved,
narrow the scope of requests, and ease the work and cost of searching large databases and
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electronically stored caches of information through reasonable, agreed search terms and
parameters.
6.
Selected case law references of interest (note: many cases that are retrievable
on the subject predate the December 2006 rules changes, supra).
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Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 316-317 (S.D.N.Y. 2003)
(“Zubulake I”); and id, 216 F.R.D. 280 (S.D.N.Y. 2003) (“Zubulake III”); and id.,
220 F.R.D. 212 (S.D.N.Y. 2003) (“Zubulake IV”)
Lorraine v. Markel American Ins. Co., 241 F.R.D. 534 (D.Md. May 4, 2007)
O’Bar v. Lowe’s Home Centers, Inc., 2007 WL 1299180 (W.D.N.C. May 2,
2007)
Nova Measuring Instruments Ltd. v. Nanometrics, Inc., 417 F.Supp.2d 1121
(N.D.Cal. March 6, 2006)
Klein-Becker USA, LLC v. Englert, 2007 WL 1795762 (D.Utah June 20, 2007)
In re Verisign, 2004 WL 2445243 (N.D. Cal. March 10, 2004)
Scotts Co. LLC v. Liberty Mut. Ins. Co., 2007 WL 1723509 (S.D. Ohio June 12,
2007)
Quinby v. WestLB AG, 2005 WL 3453908 (S.D.N.Y. Sep. 5, 2006)
In re Veeco Instruments, Inc. Securities Litigation, 2007 WL 983987 (S.D.N.Y.
Apr. 2, 2007)
W.E. Aubuchon Co. v. Benefirst, LLC, 2007 WL 1765610 (D.Mass. Feb. 6, 2007)
Hagemeyer North America, Inc. v. Gateway Data Sciences Corp., 222 F.R.D. 594
(E.D.Wis. 2004)
OpenTV v. Liberate Technologies, 219 F.R.D. 474 (N.D.Cal. 2003)
Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568 (N.D. Ill. 2004)
Cornell Research Foundation, Inc. v. Hewlett Packard Co., 223 F.R.D. 55
(N.D.N.Y. 2003)
Williams v. Massachusetts Mut. Life Ins. Co., 226 F.R.D. 144, 145-146 (D. Mass.
2005).
Hopson v. Mayor and City Council of Baltimore, 232 F.R.D. 228 (D.Md. 2005)
Order requiring preservation of computer-stored electronic mail, in Richardson v.
TVIA, Inc., 2007 WL 1129344 (N.D. Cal. April 16, 2007)
Spoliation of electronic mail, sanctions, in In re Krause, 2007 WL 1597937
(Bkrptcy D.Kan. June 4, 2007)
Williams v. Spring/United Management Co., 2006 WL 3691604 (D.Kan. Dec. 12,
2006).
Semsroth v. City of Wichita, 239 F.R.D. 630 (D.Kan. Nov. 15, 2006)
In re Honeywell Intern. Inc. Securities Litigation, 230 F.R.D. 293 (S.D.N.Y.
2003) (electronic version of accountants’ workpapers)
U.S. v. Sattar, 2003 WL 22510435 (S.D.N.Y. Nov. 5, 2003) (issue of production
of electronically intercepted files in format other than their original electronic
format)
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