Network Firm News

Friday, June 06, 2003

SDNY's Decision re Discovery of Electronic Documents Determines Who Pays the Costs
Jason Krause -- ABA Journal eReport -- 6/6/03
[Litigators say Judge Shira Scheindlin's 40-page ruling in Zubulake v. UBS Warburg, 02 Civ. 1243 (SAS) on discovery of electronic documents will change the way such documents will be handled in court.]

Scheindlin lists seven factors to test in order to determine which side of a case should pay for electronic discovery, and she notes that, contrary to previous procedures, not all the factors carry equal weight.

"As large companies increasingly move to entirely paper-free environments," Scheindlin writes in the ruling, "the frequent use of cost-shifting will have the effect of crippling discovery in discrimination and retaliation cases. This will both undermine the ‘strong public policy favor[ing] resolving disputes on their merits,’ and may ultimately deter the filing of potentially meritorious claims." Scheindlin’s seven factors include:

1. How specific the discovery request is.
2. The availability of the information from other sources.
3. The total cost of producing the requested documents compared to the amount in controversy.
4. The total cost compared to the resources each party has.
5. The relative ability of each party to control costs.
6. The importance of the issues at stake in the litigation.
7. The relative benefits to the parties of getting the information

The factors are listed in order of importance, Scheindlin writes.
 

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