The New Paradigms of E-Discovery and Cost-Shifting: Determining Who Pays for Electronic Discovery

By Iqbal, Mohammad | Defense Counsel Journal, July 2005 | Go to article overview

The New Paradigms of E-Discovery and Cost-Shifting: Determining Who Pays for Electronic Discovery


Iqbal, Mohammad, Defense Counsel Journal


FEDERAL Rule of Civil Procedure 34 has permitted discovery of electronic information since 1970, but the volume of electronic documents has grown exponentially during the Internet revolution in which we live. (1) Today, the vast majority of documents exist in the form of emails, word processing documents, or spreadheets, and one estimate indicates that ninety-five percent of all documents are now created electronically. (2) In 2004, an estimated thirty billion emails were sent daily, and in 2006, the number is expected to double. Because digitally-stored data takes up significantly less space than paper, over seventy percent of electronic information is currently stored on laptops, cell phones, voice mail servers, personal digital assistants (PDAs), and backup tapes rather than in document warehouses.

Computerized data is discoverable if it is relevant. (3) Discovery of electronic documents is a relatively simple matter when the information requested is readily accessible. However, discovery becomes problematic when electronic information is no longer available by merely recalling it, but requires special programming tools or experts to extract it from its stored location into a useable format. The cost of identifying, gathering, reviewing for privilege, and producing electronic documents is high. For example, in one case, the cost of recovering data was estimated at $9.75 million. (4) These astronomical expenses stem from the sheer magnitude and redundancy of data on backup tapes. (5)

Prior to the dominance of today's computer age, cost sharing in discovery was not a very dynamic topic. Several cases had addressed the issue, creating a solid body of common law from which to draw guidelines. Now, however, technology has created new paradigms for discovery, and it is redefining modern litigation strategies and tactics. The scope of electronically recorded information is considerably broader than most people recognize. (6) This process is evolving rapidly as new technologies, their use, misuse, and abuse give rise to new causes of action and remedies. Because of the potential costs associated with many electronic discovery requests, cost-shifting is one of the most hotly contested issues in electronic discovery.

The issue regarding who pays for electronic discovery is unsettled, inconsistent, and highly case-specific. (7) Several judicial approaches have been applied to decide whether the cost of production is shifted to the requesting party. The law of electronic discovery is beginning to emerge, but most issues are so unexplored that judges must still develops the majority of the law in this area. (8) Electronic discovery technology is developing faster than the law of electronic discovery, and it is likely that electronic discovery issues presented to courts will outpace prior judicial decisions. Although the endpoint of the process is unknown, recent court decisions provide some guidance on electronic discovery planning.

This article examines the legal framework that has been used historically to allocate discovery costs and recent cases that address the issue of electronic discovery. The article also compares and summarizes significant judicial holdings and factors analyzed in the courts' cost-shifting analysis and concludes with an overview of emerging trends and best practices in discovery planning.

I. Principles of Discovery

Under the federal discovery rules, the general presumption requires the responding party to bear the expense of complying with discovery requests. The responding party may invoke the district court's discretion to grant orders protecting the responding party upon a showing of "oppression" or "undue burden or expense." The court may then shift all or part of the cost to the requesting party. (9) On the other hand, the responding party cannot attempt to hide a needle in a haystack by mingling responsive documents within numerous non-responsive documents. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The New Paradigms of E-Discovery and Cost-Shifting: Determining Who Pays for Electronic Discovery
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.