Federal District Court Opinions
SEMSROTH v. CITY OF WICHITA, (Kan. 11-15-2006) GRETA
SEMSROTH, et al., Plaintiffs, v. CITY OF WICHITA, et al.,
Defendants. Case No. 04-1245-MLB-DWB. United States
District Court, D. Kansas. November 15, 2006
MEMORANDUM AND ORDER
DONALD BOSTWICK, Magistrate Judge
Before the Court is Defendants’ oral motion for Plaintiffs
to pay all or part of the costs relating to the discovery
of Defendants’ electronic mail. Plaintiffs filed a Brief
Addressing Cost-Shifting for Discovery of Electronic Mail
(Doc. 58), opposing the shifting of any cost burden from
Defendants to Plaintiffs. Defendants filed a Memorandum
Addressing Cost-Shifting for Discovery of Electronic Mail
(Doc. 63), in support of its oral motion, and Plaintiffs
filed an additional Reply Memorandum Regarding Shifting
Costs of Discovery of Electronic Evidence (Doc. 66). After
discussion about this matter at a scheduling conference,
Plaintiffs filed a Supplemental Memorandum (Doc. 117), and
Defendants also filed a Supplemental Memorandum, with an
attached Affidavit of Kevin Norman (hereafter Norman Aff.),
and excerpts from several deposition transcripts. (Doc.
121). Page 2
BACKGROUND
Plaintiffs, female officers of the City of Wichita’s
(“City”) police department, filed suit against the City,
the Police Department, and Chief Norman Williams in his
individual and official capacities, alleging a multitude of
violations of federal and state law. Plaintiffs allege
that, while working for the City, they were subject to,
among other things, sexual harassment, hostile work
environment, gender discrimination, and violations of their
equal protection and due process rights in violation of
various federal and state laws. See generally, Plaintiffs’
Amended Complaint. (Doc. 53).
The case was filed as a class action, but the District
Court denied Plaintiffs’ motion to certify a class. (Doc.
86). The undersigned magistrate judge later denied
Plaintiffs’ motion to amend their complaint in order to
re-assert class claims. (Doc. 118). As a result, this case
now involves only the claims of the four named plaintiffs.
During discovery, Plaintiffs requested information relating
to e-mails sent to or by other officers within the Wichita
Police Department. Through negotiations, the parties
narrowed that request to copies of e-mails from 117
different supervising officers to the extent that such
e-mails exist on a back-up tape of July 23, 2004. Page 3
Defendants store e-mail information only on (1) their
active user e-mail files and (2) on back-up tapes.
Plaintiffs assert that a search of current active user
files is inadequate because there is no way to obtain
information regarding past deleted e-mails. Thus, the
back-up tape is the only real source of information
regarding e-mails in existence on July 23, 2004, but that
may have been deleted thereafter.
The City keeps back-up tapes for disaster recovery
purposes only, and not to retrieve information. Thus, in
order to conduct a word search of the e-mails contained on
a given back-up tape, the City would have to restore the
back-up tape to an e-mail server. Because of recent
hardware upgrades, the City has an Exchange 5.5 server
available for such a restoration. However, despite such
hardware availability, the City claims that new software
and labor costs would be substantial. The current dispute
revolves around who should pay the costs of restoring the
back-up tapes and retrieving the requested information from
the July 23, 2004, back-up tape.[fn1]
Kevin Norman is the person who has supervised and
monitored work of the City’s IT/IS Department in this case.
In his most recent affidavit (Doc. 121, Page 4 Norman
Aff.), Norman reviews the actions the City has taken to
date to comply with Plaintiffs’ demands for discovery of
electronic data and specifically e-mail.[fn2] There are two
ways to search the e-mail files of the 117 supervisors for
the specific words Plaintiffs’ have requested: (1) By use
of a software program known as Discovery Attender which
will search the entire back-up tape at once after it is
restored and loaded on the Exchange 5.5 server; and (2) a
“manual” search of the copies of 117 e-mail accounts of
these supervisors which the City has copied as.pst files.
The manual method requires that each .pst file be loaded
and then searched using the Microsoft Outlook search
feature by searching the subject and message bodies of all
e-mails. Norman notes that under the manual system, each.pst
file would have to be searched multiple times depending on
the number of keywords desired, then any identified e-mail
message would have to be opened and copied to a separate
folder. (Doc. 121, Norman Aff. ¶¶ 5, 7).
Norman sets out the costs of the proposed search using the
two alternative methods. To use the Discovery Attender
software program would require that this Page 5 software
be purchased at an estimated cost of $2,224.95[fn3] which
includes the cost of shipping, handling and minimal
support. The software would then be loaded by City IT/IS
staff on the server and they would run the search of the
back-up tape using the words requested by Plaintiffs. To
search the 117 e-mail boxes on the back-up tape for the
seventeen (17) words identified by Plaintiffs would take an
estimated 8 hours at a rate of $50 per hour, bringing the
total estimated cost to $2,624.95. (Doc. 121, Norman Aff.
¶ 6).
To do the search “manually,” i.e., by having the City’s
IT/IS staff search the.pst files individually using
Microsoft Outlook, is estimated to take 20 minutes for each
of the 117 mailboxes for supervisors which, at an hourly
rate of $50, would be approximately $1,950. This process is
labor-intensive and more subject to human error, and the
time (and therefore cost) could be greater in the event
numerous documents are located and need to be loaded to
other files. (Doc. 121, Norman Aff. ¶ 7-8).
Plaintiffs argue that the cost of this electronic
discovery should be borne by Defendants as the producing
party, and that requiring the City to expend these costs
would not constitute an “undue burden” on the City. The
City seeks a Page 6 protective order which would require
that the costs of this search should be borne, at least in
part, by Plaintiffs. The City notes that it has no future
use for the Discovery Attender software, it would not buy
that software absent an order of the Court, there is no
evidence that the search of the back-up tape will even find
any of the words identified by Plaintiffs for use in a
search, and the burden of compliance with Plaintiffs’
requested discovery would be an undue burden on Defendants.
The Court has withheld ruling on this issue in the hope
that the parties would be able to reach some compromise
concerning e-mail production that would satisfy both sides.
During the time since this issue was first raised, the
parties have apparently explored various ways to accomplish
a search of the specific back-up tape in issue, but no
agreement has been reached. Plaintiffs have proposed
alternative methods of searching which would have
Plaintiffs’ expert conduct the search, but the City has
refused these alternatives since the electronic data to be
search contains highly confidential information.
DISCUSSION
While there is a presumption that the responding party
will bear its own costs of production, the Federal Rules
permit the Court to grant a protective order “to protect a
party or person from annoyance, embarrassment, oppression,
or undue burden or expense.” Fed.R.Civ.P. 26(c). Trial
courts have discretion in Page 7 determining when a
protective order is appropriate. See Boughton v. Cotter
Corp., 65 F.3d 823, 828 (10th Cir. 1995) (stating that a
trial judge’s grant of a protective order will be reviewed
for abuse of discretion). Additionally, “the party seeking
a protective order has the burden to demonstrate good
cause.” Horizon Holdings, L.L.C. v. Genmar Holdings, Inc.,
209 F.R.D. 208, 214 (D. Kan. 2002) (citation omitted). The
moving party must make “a particular and specific
demonstration of fact, as distinguished from stereotyped
and conclusory statements.” Gulf Oil Co. v. Bernard, 452
U.S. 89, 102 n. 16, 101 S. Ct. 2193, 2201, 68 L.Ed.2d 693
(1981) (quotation omitted).
The current version of the Federal Rules of Civil
Procedure provide some general guidance in determining what
constitutes good cause for granting a protective order.
Fed.R.Civ.P. 26(b)(2) provides that
[t]he frequency or extent of use of the discovery methods
otherwise permitted under these rules and by any local
rule shall be limited by the court of it determines that .
. . (iii) the burden or expense of the proposed discovery
outweighs its likely benefit, taking into account 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.
Commentators have opined that this rule “should be used to
discourage costly, speculative, duplicative, or unduly
burdensome discovery of computer data and Page 8
systems.” MANUAL FOR COMPLEX LITIGATION (4th) §
11.446.
An amendment to Fed.R.Civ.P. 26(b)(2) will become effective
on December 1, 2006, and this amendment was “designed to
address issues raised by difficulties in locating,
retrieving, and providing discovery of some electronically
stored information.” Advisory Committee Note on Amendment
to Rule 26(b)(2). Pursuant to amended 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 motion to compel discovery or for a protective
order, the party from whom discovery is sought must show
that the information is not reasonably accessible because
of undue burden or cost. If that showing is made, the
court may nonetheless order discovery from such sources if
the requesting party shows good cause, considering the
limitations of Rule 26(b)(2)(C). The court may specify
conditions for the discovery.
Therefore, the burden of establishing that the information
is not reasonably accessible because of undue burden or
cost is on the party responding to the discovery request,
in this case the City.
Once it is shown that the source of electronically stored
information is not reasonably accessible, the requesting
party, here Plaintiffs, may still obtain discovery by
showing good cause, considering the limitations of amended
Rule 26(b)(2)(C), which balance the costs and potential
benefits of the proposed Page 9 discovery. The amended
Rule 26(b)(2)(C) — which is substantially the same
as present Rule 26(b)(2)(iii) — provides that
[t]he frequency or extent of use of the discovery methods
otherwise permitted under these rules and by any local
rule shall be limited by the court if it determines that:
. . . (iii) the burden or expense of the proposed
discovery outweighs its likely benefit, taking into
account 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. The court may
act upon its own initiative after reasonable notice or
pursuant to a motion under Rule 26(c).
A. DEFENDANT’S CHOICE OF STORAGE MEDIA
As a preliminary matter, Plaintiffs argue that the City’s
choice of data storage systems and Plaintiffs’ lack of
control over such choice require the Court to deny the
motion. Plaintiffs cite In re Brand Name Prescription Drugs
— Antitrust Litigation for the proposition that
Defendants should not be able to shift the costs of
production where the costs are the result of the back-up
system chosen and implemented by Defendants. Case No.
94-897, 1995 WL 360526, at *1-3 (N.D. Ill. 1995). The Court
rejects this bright-line argument.
While courts have, in the past, rejected requests for
cost-shifting where the requesting party chose a
difficult-to-access storage media, most courts are now
moving toward a more sophisticated approach of considering
various factors in Page 10 deciding whether to shift the
costs of electronic discovery. Paul M. Robertson & Lawrence
T. Stanley, Jr., Electronic Discovery: a Survey of Relevant
Law and Recent Developments, Committee on Pretrial Practice
and Discovery, vol. 13, No. 1 at 11 (Winter 2005).
The Court is not aware of any decision since Zubulake v.
UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003) (Zubulake
I), that unequivocally prohibits cost-shifting where the
Defendant voluntarily utilized storage technology that is
difficult to access or restore. Furthermore, the Court has
discretion in determining whether to shift the costs of
discovery. See Oppenheimer Fund, Inc. v. Sanders, 437 U.S.
340, 358, 98 S. Ct. 2380, 57 L. Ed. 2d 253 (1978) (stating,
in dicta, that district courts may, in their discretion,
condition discovery on the requesting party’s payment of
costs); 8 Charles Alan Wright, Arthur R. Miller & Richard
L. Marcus, FEDERAL PRACTICE AND PROCEDURE, § 2038
(2d ed. 1994) (stating that the “court may order the party
seeking discovery to pay the expenses caused thereby though
it is not required to do so”) (citations omitted).
The Court is cognizant of the possibility that potential
litigants might intentionally retain stored data in an
inaccessible media in order to deter discovery Page 11 in
litigation.[fn4] Where, as here, the storage media is
reasonably related to the purposes for which the information
is retained, the court will not automatically require that
party to bear the costs of retrieving the information. Cf.
Oppenhiemer Fund, 437 U.S. at 359 (noting that a defendant
may be required to bear the costs of information retrieval
when it would perform such retrieval in the ordinary course
of its business).
Defendants state, and Plaintiffs do not challenge, that
the City’s back-up e-mail information was kept for the sole
purpose of disaster restoration. The Advisory Committee
Note to the Proposed Amendment to Rule 26(b)(2)
acknowledges that certain information “can be located,
retrieved, or reviewed only with very substantial effort or
expense.” As an example, the Committee identifies
information “stored solely for disaster-recovery purposes”
— like the information at issue. It is, therefore,
apparent that Defendants’ storage choice was not only
common, but anticipated by those drafting the amendments to
the Federal Rules of Page 12 Civil Procedure.[fn5] The
Court thus finds that back-up tapes were a reasonable
storage method for such purpose, and assigns no fault to
Defendants for utilizing such method.
B. COST THRESHOLD
Plaintiffs also argue that the low cost of compliance in
this case (approximately $2624.95),[fn6] in relation to
compliance costs for electronic discovery in other cases,
makes any cost-shifting analysis totally unnecessary.
Again, the Court disagrees with this bright-line argument.
In an early case, the Supreme Court stated that there may
be circumstances where costs should not be shifted because
the expenses involved are “so insubstantial as not to
warrant the effort required to calculate it and shift it to
the [requesting party].” Oppenheimer Fund, 437 U.S. at 359
(considering cost-shifting in the context of a disclosure
of information for the purpose of class Page 13
notification under Fed.R.Civ.P. 23). The Oppenheimer court
cited, as an example of such insubstantial costs, the
expense of making files available for inspection. Id.
(citing In re Nissan Motor Corp. Antitrust Litigation, 552
F.2d 1088 (5th Cir. 1977)). After Oppenheimer, and early in
the history of electronic discovery, some courts did focus
on whether the cost of compliance was “excessive or
inordinate,” but generally refused to set out an ironclad
formula which would determine what was “undue” within the
meaning of the federal rules. See e.g., Bills v. Kennecott
Corp., 108 F.R.D. 459, 463-64 (D.Utah, 1985) (refusing to
require payment of $5,411.25 by plaintiffs-employees to
obtain computer records from their employer). Likewise,
courts,[fn7] commentators,[fn8] and the drafters[fn9] of
the Federal Rules of Civil Procedure have repeatedly stated
that the Page 14 rules are made intentionally flexible in
order to allow courts to consider the relevant factors of
each case. “[E]ven a very slight inconvenience may be
unreasonable if there is no occasion for the inquiry and it
cannot benefit the party making it.” 8 Charles Alan Wright,
Arthur R. Miller & Richard L. Marcus, FEDERAL PRACTICE AND
PROCEDURE, § 2036 (2d ed. 1994). Thus, the Court
finds that an analysis is necessary to determine whether the
cost and expense of complying with the discovery request
would be unduly burdensome to Defendants under the facts of
this case.
C. COST-SHIFTING FACTORS
The Court has found no Tenth Circuit case dealing with
cost-shifting of electronic discovery between
parties.[fn10] The current leading case on cost-shifting is
Zubulake I, 217 F.R.D. 309 (S.D.N.Y. 2003), which has been
cited by both parties. See also Zublake v. UBS Warburg LLC,
216 F.R.D. 280 (S.D.N.Y. 2003) (Zubulake III). Page 15
In Zubulake I, the court considered whether the plaintiff
should bear the cost of complying with her discovery
requests relating to the production of e-mails stored on
back-up tapes. The defendant estimated that production
would cost approximately $175,000.00. Id. at 316. Zubulake
I established a two-part test for determining when
cost-shifting is appropriate for electronic discovery
requests. The first inquiry is whether the requested
discovery is unduly burdensome. Id. at 318. The court
determined that “whether production of documents is unduly
burdensome or expensive turns primarily on whether it is
kept in an accessible or inaccessible format.”[fn11] Id.
After finding that some of the information was contained
on inaccessible back-up tapes and, therefore, unduly
burdensome to produce, the court applied a multi-factor
test to determine whether cost-shifting was appropriate.
Zubulake I modified the test applied in Rowe
Entertainment, Inc. v. The William Morris Agency, Inc., 205
F.R.D. 421 (S.D.N.Y. 2002) to create its own test. The
Court established seven factors to be considered in
descending order of importance: (1) the extent to which the
request is specifically tailored to discover Page 16
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. Zubulake I, 217 F.R.D. at 322. The court noted
that the first two factors (comprising the “marginal
utility test”) were the most important, the second three
factors were the next most important, and the final two
factors would rarely make any difference, but could be very
important in the few cases to which they would apply. Id.
at 323.
The analysis in Zubulake I (and the application of those
factors in Zubulake III) must be considered in connection
with the later amendment to Rule 26(b)(2) which will become
effective on December 1, 2006. The proposed rule requires a
balancing of the costs and potential benefits of discovery,
and the Advisory Committee identified several items to be
considered, including:
(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 Page 17 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.
Advisory Committee Notes to Rule 26(b)(2). The similarity
between these considerations and the factors in Zubulake I
is readily apparent. The court finds all of these factors
to be instructive. The Court agrees, however, that these
factors should not be treated simply as a check-list which
is mechanically applied to every case and where the
decision to shift costs is made solely on the basis of how
many factors are present in a particular case. See e.g.,
Zubulake I, 217 F.R.D. at 322-23; Zubulake III, 216 F.R.D.
at 289.
D. INACCESSIBLE MEDIUM AND UNDUE BURDEN
Here, as in Zubulake, the data sought is on an medium
which can be classified as “inaccessible,” i.e., back-up
tapes, which must be restored before they can be searched
for relevant data. This suggests that the process of
producing such data could constitute an undue burden on
Defendant. See Zubulake,
Page 18 217 F.R.D. at 318 (“whether production of documents
is unduly burdensome or expensive turns primarily on
whether it is kept in an accessible or inaccessible
format.”). However, the Amendment to Rule 26(b)(2)(B) makes
clear that any inaccessibility must be “because of undue
burden or cost.” This brings into play Plaintiffs’ argument
that the costs in this case are not so significant as to
cause an undue burden on the City.
The City states, however, that it has already spent over
$20,000 for work prior to May 17, 2005, in connection with
electronic discovery requests from Plaintiffs, including
the purchase of back-up tapes and two tape drives. (Doc.
121, Norman Aff. ¶ 3; Doc. 63, Norman Aff.
¶¶ 3-4). The City argues that the total costs
— the City’s past expenditures plus any future costs
to restore and search the e-mail — are substantial
and burdensome. (Doc. 121 at 1-2). For purposes of
cost-shifting in this case, the court believes that it
should consider not only the future costs to either (1)
acquire the search hardware (Discovery Attender), or (2) to
conduct a search on the .pst files using Microsoft Outlook,
but it should also consider the costs which the City has
already incurred that were directly related to restoring or
searching e-mails.[fn12] Page 19
The court has reviewed the itemization of prior work done
by the City’s IT/IS Department which was attached to Mr.
Norman’s earlier affidavit. (Doc. 63, Norman Aff. ¶
3). It appears that much of the early work in October and
November, 2004, was directed to issues concerning the
back-up of the City’s TSM system which was the subject of
an earlier motion by the City. See Defendants’ Motion for
Protective Order, October 8, 2004, Doc. 24. In that motion,
the City was concerned with Plaintiffs’ demand for
preservation of electronic data and the affect any such
order would have on the City’s automated back-up of the TSM
system. At that time, the court was advised that the TSM
system was a disaster retrieval system that was separate
from the City’s e-mail system and that the City had already
created back-up tapes of the City’s e-mail system. (Doc. 27
at 4, n. 1). Therefore it appears to the court that the
acquisition of the two new tape drives and additional
back-up tapes, see Doc. 63, Norman Aff. ¶ 4, had
nothing to do with preservation of the City’s e-mail
system. The court does note that the City staff did spend
time creating .pst files for certain listed employees and
supervisors and researching issues concerning the Exchange
5.5 server restoration, all of which appear to be directly
related to the e-mail search issue. The court can identify
such work done on December 2, 3, 6 and 8, 2004, and on
March 7, 9 and 11, 2005, which appears to fall in this
category. See Doc. 63, Norman Aff. ¶ 3 and attached
Page 20 Consulting Time Report. The total cost reported for
those specific activities is approximately $1,150.
Therefore, for purposes of considering the cost to the City
of restoring and searching the single e-mail back-up tape,
it appears that the total costs would not exceed $3,374.95
(prior staff time of $1,150 and acquisition of Discovery
Attender and future staff time to restore and search
e-mails of $2,624.95).[fn13] While this pales in comparison
to the estimated costs in Zubulake III (approximately
$166,000 to restore and search 94 back-up tapes)[fn14] and
Quinby ($226,266.60 to restore and search six former
employees’ e-mails on an expedited basis),[fn15] it is not
an insignificant cost.
While it is somewhat questionable whether these total
costs make the e-mails stored on back-up tape “not
reasonably accessible because of undue burden or cost,” as
required by the proposed amendment to Rule 26(b)(2)(B), the
court Page 21 will proceed to analyze the cost-shifting
issue based upon the factors identified in Zubulake I and
the amended Rule 26(b)(2)(C).
E. APPLICATION OF COST SHIFTING FACTORS IN THIS CASE
The ultimate question is whether the burden of complying
with the discovery request outweighs the likely benefit of
the proposed discovery. Zubulake I, 217 F.R.D. at 322-23
(“Put another way, `how important is the sought-after
evidence in comparison to the cost of production?'”). The
factors to be considered should be directed toward, and
subservient to, this ultimate question.
Thus, the first inquiry should be to ask what are the
benefits to be derived from the discovery, particularly:
(1) what is the likelihood that the discovery will uncover
relevant information, and (2) what is the potential value
of that information in resolving the issues in the case.
Then, these benefits should be compared to the cost burden
resulting from the discovery, again asking particularly:
(3) the total cost of the production compared to the amount
in controversy, and (4) the total cost of production
compared to the resources available to each party. The
court believes that these factors should all be given such
weight as may be justified by the facts of the individual
case as they are all critical to the ultimate question of
whether the costs outweigh the likely benefits of
production. Page 22
The cost for the anticipated restoration and search of the
e-mail back-up tape is well established in the record and is
not disputed. Neither party has speculated, however, on the
possible recovery that these four named plaintiffs might
receive were they to prevail in their claims. The court is
unable on the record to make any such determination itself.
However, since the case now deals only with these four
named Plaintiffs and not with a class, any projected
recovery would appear to be far less than Plaintiffs might
have initially anticipated when the case was filed. Even
so, the costs of restoring and searching the e-mail back-up
tape does not seem excessive when compared to the possible
amount in controversy.
On the other hand, any cost-shifting to Plaintiffs will
necessarily be borne now by only the four Plaintiffs, and
not spread among a larger number of class members. The
parties also failed to present any evidence as to the
relative financial position of the parties, but the court
can properly assume that the four Plaintiffs have
significantly less financial capability to pay these costs
than does the City. However, it should also be considered
that as a governmental entity, the City’s ability to
shoulder significant discovery costs is not comparable to
the investment banking organizations in both Zubulake and
Quinby,[fn16] and the source of Page 23 any such monies
comes from public rather than private sources. Considering
all of the cost factors, the court believes that they weigh
slightly against any cost-shifting.
The more problematic matter involves the two “benefit”
factors.[fn17] Discovery in the case is now concluded
except for the unresolved issue concerning the e-mail
back-up tape. Plaintiffs note in their Supplemental
Memorandum that some e-mails have been produced in
discovery and have been discussed in depositions. (Doc. 117
at 3-5). However, the deposition excerpts cited by
Plaintiffs do not appear to provide any direct evidence of
gender discrimination or retaliation against Plaintiffs.
While the court realizes that a party cannot predict with
certainty that a proposed discovery method will lead to the
discovery of important evidence, the more likely it is that
the back-up tape contains important, relevant evidence to
Plaintiffs’ claim, the fairer it is to require the City to
search at its own expense. Cf. Zubulake I, 217 F.R.D. at
323 (citing McPeek v. Ashcroft, 202 F.R.D. 31, 34 (D.D.C.
2001)).
In Zubulake III, even though several e-mails had been
produced as a result Page 24 of a sample restoration and
search of only a few back-up tapes, the court concluded
that the plaintiff had not been able to show that there was
indispensable evidence on the back-up tapes, and the
success of the full search was somewhat speculative. 216
F.R.D. at 289. The same situation appears to be present in
this case. While Plaintiff has identified testimony that
there have been some e-mails seen by a Plaintiff that she
indicated “would probably upset a female officer,” Doc. 117
at 4, this is not a strong indication that a search of the
e-mails of 117 supervisors (many of whom were not the
direct supervisors of any of the four Plaintiffs)[fn18]
would likely produce direct evidence of gender
discrimination or retaliation. The portions of the
Plaintiffs’ depositions provided by Defendants reinforces
this conclusion. See Doc. 121, Attached Deposition
Excerpts. Therefore, the benefit factors weigh in favor of
cost-shifting. Page 25
Most of the other factors outlined in either Zubulake or
the amendments to Rule 26(b)(2), are not particularly
relevant to the analysis in this case. For example, the
Court does agree with Zubulake that while other factors
such as the importance of the issues at stake in the
litigation and the relative benefits to the parties of
obtaining the information rarely may be relevant, they may
be vital to the analysis under the certain circumstances.
Thus, highly important litigation[fn19] may require greater
latitude in cost-shifting than more isolated cases, and
cases where there is a definite benefit to the responding
party may weigh against cost-shifting.[fn20]
While this obviously is an important case to the four
Plaintiffs, the court is inclined to agree with Zubulake
that a workplace discrimination claim probably is Page 26
not the type of case that warrants special consideration as
to cost-shifting. Interestingly, both Zubulake and Quinby,
like the present case, involve claims of gender
discrimination in the workplace. Although both courts
acknowledge that discrimination is an important problem,
neither considered such a case to be unique or novel in
nature, and therefore gave little or no consideration to
this factor. Zubulake III, 216 F.R.D. at 289; Quinby, 2006
WL 2597900 at * 15. As the court stated in Zubulake III,
[i]f I were to consider the issues in this discrimination
case sufficiently important to weigh in the cost-shifting
analysis, then this factor would be virtually meaningless.
Accordingly, this factor is neutral.
216 F.R.D. at 289. Even though suits alleging discrimination
in the workplace of a public employer may seem more like
“social reform litigation” than suits involving only
private employers, the court still believes that it would
be unwise to treat this case as one requiring some special
consideration for purposes of cost-shifting.
CONCLUSION
After consideration of the briefs of the parties, and
considering the specific circumstances of this case, the
court cannot conclude that cost to the City of restoring
and searching the single e-mail back-up tape of July 23,
2004, is such as to render that back-up tape “not
reasonably accessible because of undue burden or cost.” See
Amendment to Rule 26(b)(2)(B). The court is not
unsympathetic to the Page 27 City’s argument that it has
already incurred significant costs and expenses in order to
satisfy other electronic discovery demands of Plaintiffs in
this case; however, the majority of those expenses do not
directly relate to the restoration and search of the
back-up tape which is the issue now before the court and
therefore should not be considered. Cf. Zubulake III, 217
F.R.D. at 290 (as a general rule, where cost-shifting is
appropriate, only the costs of restoration and searching
should be shifted). Because the e-mails are reasonably
accessible without undue burden or cost, the cost-shifting
factors in the amendment to Rule 26(b)(2)(C) do not come
into play. Cf, Zubulake I, 217 F.R.D. at 318 (cost-shifting
should only be considered when electronic discovery imposes
an “undue burden or expense” on the responding party).
Had the direct cost and expense of restoring and searching
the back-up tape been larger in this case, as may often be
the case with use of back-up tapes, the application of the
cost-shifting factors outlined in the amendments to Rule
26(b)(2)(C) and Zubulake I would have easily supported a
shifting of some of the costs to the Plaintiffs. This is
particularly true since it appears to the court that the
likelihood that the search of the July 23, 2004, back-up
tape would result in the discovery of significant important
evidence to support Plaintiffs’ discrimination claims in
this case is somewhat questionable and speculative. In that
regard, the Page 28 court does note that Defendants
apparently have not attempted to view any of the e-mails on
the back-up tape even though e-mails for 117 mailboxes have
already been transferred to .pst format and could have been
searched with Microsoft Outlook search features. Thus,
Defendants, like Plaintiffs, are merely speculating about
the results of any e-mail search.[fn21]
While the court has concluded that cost-shifting is not
warranted in this case, the court still retains the
authority under Fed.R.Civ.P. 26(b)(2) to limit the extent
of proposed discovery where the expense outweighs its
likely benefit. After considering all the fact of this
case, the court concludes that the scope of the search of
the e-mails should be limited in two respects.
First, the court notes in this case the relative cost to
restore and search the requested e-mails is much less
because Plaintiffs have agreed that only one back-up tape
for July 23, 2004, should be searched. On the other hand,
Plaintiffs’ designation of the seventeen words to be used
for searches[fn22] as to each of the 117 supervisors’
e-mail boxes appears to be too broad in scope. The court
agrees with Defendants that several of the Page 29 words
are common enough that they might well result in
identification of a significant volume of irrelevant
e-mail. Others are words that do not appear to be
reasonably calculated to lead to the discovery of relevant
evidence in this case. Accordingly, the Court finds that
the following words should not be used in any e-mail
search: Sara, Heather, Female, Ho, Kim and Dyke.
Second, while Plaintiffs may be entitled to seek discovery
of an alleged department-wide gender bias from supervisors
other than those who directly supervise the four
Plaintiffs,[fn23] the court believes that the cost of
searching 117 mailboxes exceeds the likely benefit of such
a search. Accordingly, any e-mail search shall be limited
to on 50 of the 117 identified mailboxes. Plaintiffs may
select the 50 mailboxes to be searched.
Because the court has pared down the both the number of
words to be used in any search as well as the number of
mailboxes to be searched, this will reduce the expenses
forecast by Defendants, particularly if they choose to
search the .pst files which have already been copied for
all 117 supervisors’ e-mail boxes. This will not, however,
significantly reduce the cost if the City elects to
purchase the Discovery Attender software since it searches
the entire e-mail back-up file in one operation. Because it
has not ordered any shifting of costs to Plaintiffs, the
court Page 30 believes that Defendants should retain the
right to decide whether to purchase and install the
Discovery Attender software or to conduct searches of the
.pst files using Microsoft Outlook.
IT IS THEREFORE ORDERED that Defendants’ motion for
Plaintiffs to pay all or part of the costs relating to
discovery of Defendants’ electronic mail (Doc. 58), is
hereby DENIED.
IT IS FURTHER ORDERED that the search of Defendants’
electronic mail shall be limited in scope as set out in
this Memorandum and Order.
[fn1] Defendants have not claimed that the requested search
of e-mails is irrelevant within the meaning of
Fed.R.Civ.P. 26(b)(1), and it does appear that such a
search is reasonably calculated to lead to the discovery of
relevant evidence. Defendants’ motion only asks to shift
the cost of the e-mail search to Plaintiffs’ either in
whole or in part.
[fn2] Norman states that the City IT staff has already
spent $20,560.20 for past work related to electronic
discovery requests by Plaintiffs in this case. (Doc. 121,
Norman Aff. ¶ 3). Those expenses include $16,710.20
to purchase additional back-up tapes and two tape drives in
order for the City to be able to retain past data. (Doc.
63, Norman Aff. ¶ 4).
[fn3] This was the cost quoted to Norman on May 26, 2006.
(Doc. 121, Norman Aff. ¶ 5).
[fn4] The Advisory Committee considered the possibility that
the revised Rule 26(b)(2)(B) might encourage companies to
“bury” information in some inaccessible format in order to
keep it from being discovered in litigation, but noted that
this conduct would be subject to sanctions under both the
present and the proposed rules. Advisory Committee Note on
Proposed Amendment to Rule 26(b)(2) (May 27, 2005, revised
July 25, 2005).
[fn5] This is not a case where a party has converted data
into an inaccessible format at a time when it should have
reasonably anticipated litigation and should have
anticipated that the data would be discoverable in such
litigation. Cf. Quinby v. WestLB AG, No. 04-7406-WHP-HBP,
2006 WL 2597900 at * 9 (S.D.N.Y., Sept. 5, 2006). In this
case, the data was transferred to back-up tapes on a
regular basis and there is no contention that Defendants
intentionally placed the material in an inaccessible format
in order to avoid production.
[fn6] This is the future cost to restore and search the
back-up tape and does not consider the past costs the City
has incurred in connection with electronic discovery
issues. See Note 1, supra.
[fn7] See Seattle Times, Co. v. Rhinehart, 467 U.S. 20, 36,
104 S. Ct. 2199, 81 L. Ed. 2d 17 (1984) (stating that
Fed.R.Civ.P. 26(c) “confers broad discretion on the trial
court to decide when a protective order is appropriate and
what degree of protection is required”); F.T.C. v. Shaffner
626 F.2d 32, 38 (7th Cir. 1980) (“What is unduly burdensome
depends on the particular facts of each case and no hard
and fast rule can be applied to resolve the question.”).
[fn8] See 8 Charles Alan Wright, Arthur R. Miller & Richard
L. Marcus, FEDERAL PRACTICE AND PROCEDURE, § 2036
(2d ed. 1994) (stating that, in deciding a motion for
protective order, “a court may be as inventive as the
necessities of a particular case require in order to
achieve the benign purposes of the rule”); Dan Harshman,
Rise of the Machines: A Critical Look at the New Electronic
Discovery Standards, Business Torts Journal, Summer 2004,
at 1, 7 (“The drafters of Rule 26 intended that it be a
flexible rule capable of addressing many situations.”).
[fn9] Fed R. Civ. P. 26 Advisory Committees Note, 1970
Amendment, subdivision (b) — Scope of Discovery
(noting that Rule 26 may cover situations “not capable of
governance by precise rule, in which courts must exercise
judgment”).
[fn10] The Tenth Circuit has ordered cost-shifting where a
non-party faced a substantial discovery burden to comply
with a subpoena duces tecum. See In re Coordinated
Pretrial Proceedings in Petroleum Products Antitrust
Litigation, 669 F.2d 620, 623-624 (10th Cir. 1982)
(requiring a requesting party to pay the costs of complying
with its subpoena duces tecum — $8,782.98, which
included the costs of the subpoenaed non-party’s staff time
to search for the requested records — because the
discovery request was for the benefit of only the
requesting party).
[fn11] Back-up tapes are considered an inaccessible format
under Zubulake’s analysis because the data is not organized
for retrieval of individual documents and it is usually
more time-consuming and expensive to restore the data due
to the fact that the data has been compressed. Id. at 319.
[fn12] The City also discusses the additional time that will
be required to review any e-mails that are retrieved as a
result of any search and to remove any protected material
such as information concerning criminal investigations or
crime victims. (Doc. 121 at 3). That time, however, is not
subject to cost-shifting. See Zubulake III, 217 F.R.D. at
290 (the responding party should always bear the cost of
reviewing and producing electronic data once it has been
converted to an accessible form).
[fn13] The court realizes that adding these two specific
items is not wholly consistent. The City chose to copy the
117 e-mail boxes onto .pst files some time ago. Those .pst
files will only be used if the City chooses to search the
e-mails using Microsoft Outlook. In that case, the total
estimated costs would be $3,100 (the prior staff time of
$1,150 to copy the files to .pst format and the search time
of $1,950). The alternative of using Discovery Attender
will cost $2,624.95.
[fn14] 216 F.R.D. 282-283. The estimated expenses in this
case are less than the expenses incurred in restoring and
searching a sample of five back-up tapes in Zubulake III,
which cost $19,003.43. Id.
[fn15] 2006 WL 2597900 at * 14, n. 21.
[fn16] The defendant in Quinby had assets in excess of 265
billion Euros, and USB Warburg had net profits for the
third quarter of 2002 alone of over $700 million.
[fn17] These factors are similar to the ones identified by
the Advisory Committee concerning the likelihood of finding
relevant, responsive information and predictions as to the
importance and usefulness of the further information. See
Advisory Committee Notes to Amendment of Rule 26(b)(2).
[fn18] Plaintiffs here are claiming a pattern and practice
of gender discrimination in the Wichita Police Department
and thus seek broad discovery from supervisors other than
those directly over the four named Plaintiffs. While
Plaintiffs may be entitled to seek evidence concerning the
actions of other supervisors, see e.g., Mendelsohn v.
Sprint/United Management Co., ___ F.3d ___, 2006 WL 308664
at *3-4 (10th Cir. 2006) (refusing to extend the “same
supervisor” rule to cases where a plaintiff claims to be
the victim of company-wide discrimination rather than
allegations of discriminatory disciplinary action), the
likelihood that such a broad search will lead to direct
evidence of discrimination is not particularly strong.
Moreover, many of Plaintiffs’ claims involve alleged
retaliation against these four Plaintiffs as a result of
their filing of this case. See e.g., Doc. 118 at 9, n. 4.
As to those claims, discovery as to other supervisors would
not appear to be appropriate since it would seem that any
retaliation would come from the Plaintiffs’ direct
supervisory chain.
[fn19] The Court agrees with the Zubulake court’s general
statement of the types of cases that might involve
particularly important issues. While all litigation is
important to determining and preserving the individual
rights of the parties involved, on rare occasions,
litigation will arise that is important on a much broader
scale. Examples of such litigation include cases with the
potential for broad public impact such as toxic tort class
actions, environmental actions, “impact” or social reform
litigation, cases involving criminal conduct, and cases
involving important legal or constitutional questions. 217
F.R.D. at 321. In those cases, the costs of discovery must
be weighed in relation to the social impact of the outcome
of the case, not just the economic impact to the litigants
involved. See also, Quinby v. WestLB AG, No.
04-7406-WHP-HBP, 2006 WL 2597900 at * 9 (S.D.N.Y., Sept. 5,
2006).
[fn20] A court may, among other circumstances, find benefit
to the responding party where it would restore the
information for its own discovery purposes or in its normal
course of business. There appear to be no special
circumstances in this case that would indicate that the
City would benefit from the restoration of the back-up
tape.
[fn21] The court notes that as part of their negotiations
concerning the search of the e-mails, the parties could
have agreed to run a search of a small “sample” of the 117
supervisors’ e-mails by searching the .pst files (which had
already been copied by the City) with the Microsoft Outlook
search feature. Use of such a sampling procedure might have
assisted the parties and the court in determining the
likelihood that the search would disclose important
relevant information. See e.g., Zubulake I, 217 F.R.D. at
323-34; Zubulake III, 216 F.R.D. at 282-83.
[fn22] See Doc. 121 at 3-4.
[fn23] See Note 18, supra. Page 1