217 F.R.D. 309 (May 13, 2003)
The present case provided a textbook example of the difficulty of balancing the competing needs of broad discovery and manageable costs. According to the employer, restoring certain e-mails would cost approximately $ 175,000.00, exclusive of attorney time.
- The court held that deciding disputes regarding the scope and cost of discovery of electronic data required a three-step analysis: First, it was necessary to thoroughly understand the responding party's computer system, both with respect to active and stored data.
- For data that was kept in an accessible format, the usual rules of discovery applied: the responding party should pay the costs of producing responsive data.
- A court should consider cost-shifting only when electronic data was relatively inaccessible, such as in backup tapes.
- Second, because the cost-shifting analysis was so fact-intensive, it was necessary to determine what data could be found on the inaccessible media.
- This required the responding party to restore and produce responsive documents from a small sample of the requested backup tapes.
- Third, for the cost-shifting analysis, the court provided a weighted list of factors to be considered.
The employer was ordered to produce all responsive e-mails that existed on its optical disks or on its active servers at its own expense. The employer was also ordered to produce, at its expense, responsive e-mails from any five backups tapes selected by the employee.
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