electronically stored information unless discovery in the action has clearly distinguished between electronically stored information and ‘documents.’” Nonetheless, counsel may wish to amend current boilerplate forms of requests for productions to include specific requests for electronically stored information.
Proposed Rule 34(b) allows a requesting party to specify the form of producing electronically stored information. The responding party may object to the specified form within 30 days of service of the request. If no form was specified in the request, the responding party must state the form it intends to use. New Rule 34 will encourage parties to produce electronic data in a reasonably usable form, thereby cutting down the costs of extraction and translation.
III. Recent Developments in Case Law Regarding Electronic Discovery
In many ways, the proposed amendments codify or react to recent cases, many of which grapple with the cost shifting requests of parties faced with electronic discovery costs that outpace the value of the litigation itself. Like the rules, the cases attempt to resolve cost issues in an adversarial, and often zero-sum, setting. By the time the dispute reaches a judge (and certainly by the time the Rules Committee weighs in), the costs are certain and usually exorbitant, encouraging the parties to fight bitterly over who must pay them. We do not exhaustively address these cases here; rather, we focus on those that have had the most far- reaching and illustrative effect. We then look at cost cutting measures that have yet to find wide acceptance, usage or judicial review.
a. Zubulake I-V
Judge Shira Scheindlin’s opinions in the Zubulake case12 form the analytical foundation for several of the proposed rule changes. The action began when Laura Zubulake filed a complaint alleging gender discrimination, failure to promote and retaliation against her former employer, UBS Warburg.
In Zubulake I, the court considered with whether to compel UBS to restore and produce deleted, but possibly relevant, e-mails that only existed in UBS’s backup tapes. UBS argued that it should not be required to produce, and if it were required, plaintiff should bear the costs of extraction, restoration and review of the e-mails, which UBS estimated to be $450,000. The court first decided that, as a general matter, all relevant documents, including electronic data, are discoverable and “the presumption is that the responding party must bear the expense.” The court then set forth a three-step analysis for deciding disputes regarding the scope and cost of electronic discovery. First, the court should assess the responding party’s information systems and categorize data as “accessible” or “inaccessible.” Cost-shifting should only be considered when electronic discovery imposes an “undue burden or expense.” In practice, cost-shifting would only be considered where data is in an “inaccessible” format, such as in backup tapes.13 Second, the court should assess what data may be found in the inaccessible media and the expense and burden of producing such data by compelling the responding party to restore and produce a small sample of the relevant data. Finally, the court outlined seven factors in conducting cost-shifting analysis:
The extent to which the request is specifically tailored to discover relevant information;