The case for a preservation safe harbor in requests for e-discovery: despite the courts' increased attention to dragnet requests for production of electronic materials, the scope of preservation should be addressed.

• Author: Allman, Thomas Y.

IN THE April 2001 issue of this journal, discussed the need for rational standard to govern the production of electronic materials in discovery and advocated adoption of amendments to the Federal Rules o Civil Procedure. (1) In large measure, that proposal was driven by a concern that courts were not adequately addressing the potential for abuse by parties who, because they themselves make relatively little us of electronic media, have little or no incentive to minimize their demands for electronic data from the opposing party.

One solution I proposed then, and which remains viable today, is adoption of the principle, first articulated by the Texas Supreme Court, under which the initial production obligations of a producing party extend only to electronic material that I specifically sought and is readily available in the ordinary course of business. (2) If sufficient necessity is shown for more heroic efforts, the party seeking discovery would pay for the costs, arguably including the attorney privilege review costs. Indeed, anecdotal evidence from Texas indicates that this approach has reduced the problem of abusive requests for discovery of electronic materials in that state's courts. I support the Texas approach, although the cost shifting should be a discretionary option not mandatory. (3)

The Federal Rules Advisory Committee, through its Discovery Subcommittee, was in 2001 and is now well aware of the Texas principle and has been asked to consider rules amendments of a similar nature.

INCREASED PREDICTABILITY REGARDING ELECTRONIC DISCOVERY

Much has changed since the spring of 2001. Some federal courts, in the absence of a rules amendment, have adopted a modified Texas approach by focusing on the "accessibility" of electronic material when reviewing claims of undue burden under Rule 26(b) of the Federal Rules of Civil Procedure. In the landmark case of Zubulake v. UBS Warburg LLC (Zubulake I), (4) electronic materials that were not reasonably accessible to a producing party the time of production--in that case backup media--were exempted from mandatory production pending a careful anal sis of the possibility of cost sharing with the requesting party. Building on earlier decisions, especially the important case of Rowe Entertainment Inc. v. William Mort Agency Inc., (5) Judge Shira Scheindlin in the U.S. District Court for the Southern District of New York articulated a seven-factor test to implement the discretionary cost-shifting aspect of the modified approach.

In Rowe, decided in early 2002, Judge Robert P. Patterson Jr. in the Southern District had identified eight factors to be us in determining whether to shift the costs discovery to the requesting party. Those factors were (1) the specificity of the discovery requests, (2) the likelihood of discovering critical information, (3) the availability of the information from other sources, (4) the purpose for which the responding party kept the data, (5) the relative benefits to the parties of obtaining t information, (6) the total cost of producing the data, (7) the relative ability of each party to control costs and its incentive to do so, and (8) the resources available to each party. The Rowe test has been applied by several courts to assess whether the costs of discovery should be shifted to the requesting party. (6)

Subsequently, Judge Scheindlin in Zubulake I refined and modified the Rowe criteria to a seven-factor cost-shifting test. The factors she identified are: (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.

Left unanswered by Rowe, the two Zubulake opinions and their progeny is which costs should be shifted--the costs of restoring and searching electronic materials, the cost of reviewing them, or the costs of producing them. (7)

Rather than simply granting or denying requests for protective orders, courts consider factors that make it more or less fair se to have the requesting party absorb the additional costs attributable to an otherwise appropriate request. This approach clearly illustrates the significant power of a federal district court to shift discovery costs despite the normal presumption that each party should bear its own costs. (8)

Zubulake I utilized the common sense approach pioneered by Magistrate Judge Facciola in the McPeek litigation, under which the results of sampling techniques are used to determine whether production is warranted at all. (9) Of course, cost shifting is not considered until after an adequate showing of relevance and necessity is made, and the courts retain the power to deny discovery outright where the undue burden is out of proportion to the value to is out the information sought. (10)

Zubulake I also acknowledged the role of the Sedona Principles in furnishing practical guidance on best practices. The Sedona Conference, a non-profit organization devoted to the study of law and policy, assembled a small group of lawyers and consultants specializing in issues related to the discovery of electronic evidence, which held its first meeting in October 2002. In March 2003, the group produced a paper, The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production, containing a thorough analysis of electronic discovery issues and offering 14 preliminary principles to guide practitioners and courts in addressing those issues. (11)

In her opinion in Zubulake 1 at footnote 61, Judge Scheindlin cited Sedona Principles 8 and 9, noting that they recognize the difference between "active" data and data stored on backup tapes or "deleted, shadowed, fragmented or residual data," which, she added, was a distinction very similar to the accessible-inaccessible test she...