The decisions listed below, organized into five categories, are just some of the many that are shaping the eDiscovery landscape today. In order for you to remain current on new eDiscovery issues, we update this list frequently and add new cases on a variety of topics from various jurisdictions.

Federal District Court:
Zhu v. Pittsburgh State University, 2003 US Dist LEXIS 6398 (D. Kansas Feb. 5, 2003). In this employment discrimination case, the employee moved to compel his employer to produce computer generated documents--in addition to typewritten documents already turned over --reflecting the salaries of faculty working within his department. Defendant argued that it produced all paper documents that existed, and this was sufficient. The court found that Rule 34 applied to electronic data compilations from which information could have been obtained only with the use of “detection devices.” As such, the court required defendants to take reasonable steps to ensure that it disclosed back-up copies of files and archival tapes that will provide information about any "deleted" electronic data.

Cobell v. Norton, 206 F.R.D. 27 (D.D.C. 2002). After receiving a court order requiring them to restore backup tapes, defendants sought a protective order allowing them to produce the data in paper form. The court denied the defendants’ request, which had been made twice before, and required them to pay plaintiffs’ costs and fees incurred in responding.

Simon Property Group v. mySimon, Inc., 194 F.R.D. 639 (S.D. Ind. 2000). The court granted Simon Property’s motion to produce electronic version of documents and make certain computers available for inspection. The court said that computer records are documents and discoverable under Rule 34.

Playboy Enterprises, Inc. v. Welles, 60 F.Supp.2d 1050 (S.D. Cal. 1999). In rejecting Welles’ argument against Playboy’s accessing her hard drive, the court said that Rule 34 covers electronic data compilations, such as e-mail.

Illinois Tool Works, Inc. v. Metro Mark Products, Ltd., 43 F. Supp. 2d 951 (N.D. Ill. 1999). A few days after the trial court issued an order requiring Metro Mark to preserve the integrity of all computers without spoliation, the key computer, which had functioned properly before the issuance of the court order, suddenly stopped functioning properly. Illinois Tool Works sought sanctions. The court rejected “as totally unconvincing” Metro Mark’s argument that it did not produce the electronic documents earlier because it did not understand that “documents” included both the hard copy and electronic versions. Sanctions were imposed.

Bills v. Kennecott Corp., 108 F.R.D. 459 (D. Utah 1985). 1970 changes to Rule 34 make it clear that data compilations are “documents,” and it is axiomatic that electronic documents are discoverable under R. 34.

Federal District Court:
Kier v. UnumProvident Corp., 2003 U.S. Dist. LEXIS 14522 (S.D.N.Y. Aug. 22, 2003). In this ERISA action, the court found that the defendant took insufficient steps to preserve data and emails after receiving a court order to preserve. Because the extent of the loss and the degree of prejudice could not be determined, the court recommended the appointment of an independent expert.

Proctor & Gamble Co. v. Haugen, 179 F.R.D. 622 (D. Utah 1998), aff’d in part and rev’d in part, 222 F.3d 1262 (10th Cir. 2000). Duty to preserve exists independently of a court order.

NOW v. Cuomo, 1998 WL 395320 (S.D.N.Y. July 14, 1998). Duty to preserve arises at least with service of the complaint and counsel has a duty to advise client of pending litigation and the requirement to preserve potentially relevant evidence.

United States v. Smithfield Foods, Inc., 972 F. Supp. 338 (E.D.Va.1997). Producing party had obligation to preserve records once it was on notice of government’s investigation.

Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68 (S.D.N.Y. 1991). Duty to preserve what party knows or reasonably should know is relevant to the action or reasonably calculated to lead to the discovery of admissible evidence, and the duty arises once party has notice of the relevance of the evidence. Notice will arise when the complaint is filed or prior to the filing of the complaint when the party is on notice that litigation is likely to be filed.

National Association of Radiation Survivors v. Turnage, 115 F.R.D. 543 (N.D. Cal. 1987). Organization was on notice of the allegations in the lawsuit and the discovery requests, and it is not a defense that the particular employees in possession of the records were uninformed.

Thompson v. General Nutrition Co., 593 F.Supp. 1443 (C.D. Cal. 1984). Computer and hard copy records destroyed by GNC after litigation started. Counsel has duty to preserve what counsel knows, or reasonably should know is: (1) relevant to the action, (2) reasonably likely to lead to discovery of admissible evidence; (3) reasonably likely to be requested during discovery; or (4) subject to pending discovery request. Default judgment and attorney’s fees and costs awarded.

Bowmar Instrument Corp v. Texas Instruments, 1977 U.S. Dist. LEXIS 16078 (N.D. Ind., May 2, 1977). Duty to preserve relevant evidence arises before a court order is issued and arises when party has knowledge, or should have known, of an impending lawsuit.

Applied Telematics, Inc. v. Sprint Communications Co., 1996 U.S. Dist. LEXIS 14053 (E.D. Pa., Sept. 17, 1966). Duty to preserve includes backup tapes prepared as part of disaster recovery, and normal backup and recycling of backup tapes should have been suspended during litigation.

State Court:
Dodge, Warren & Peters Ins. Services, Inc. v. James W. Riley, et al., 105 Cal App. 4th 1414 (Cal. App. 4th District 2003). Appeal of a preliminary injuction by defendants, who were former employees of plaintiff company. Before leaving to start their own firm, the employees copied documents from the company’s computer systems. The company then terminated the employees and filed suit for misappropriation of trade secrets. The defendants appealed a preliminary injunction issued by the lower court preventing them from destroying potentially discoverable evidence on their computer systems. The appeals court refused to overturn the decision, finding that there was not an adequate remedy at law to protect plaintiff.

Linnen v. A.H.Robins Co., 10 Mass. L. Rptr. 189 (Mass Super Court, June 15, 1999). Party has obligation to preserve evidence, and even though hard copy of documents had been produced, the duty to preserve included backup tapes.

Circuit Court of Appeals:
Computer Task Group, Inc. v. Brotby, 364 F.3d 1112 (9th Cir. 2004) Default judgment issued against defendant after he engaged in systematic discovery abuses and made various unbelievable excuses for failure to produce documents.

Stevenson v. Union Pacific Railroad, 354 F.3d 739, (8th Cir. 2004). Court found that even absent a finding of bad faith, the issuance of an adverse inference instruction was not an abuse of discretion.

Residential Funding Corp. v. DeGeorge Fin Corp, 2002 U.S. App. LEXIS 20422, (2d.Cir. Sept. 26, 2002). Defendants appealed the denial of their motion for sanctions based upon plaintiff’s failure to produce response email before trial. The Second Circuit found that the judge erred in requiring a showing of gross negligence as opposed to ordinary negligence. "The sanction of an adverse inference may be appropriate in some cases involving the negligent destruction of evidence because each party should bear the risk of its own negligence." The Circuit Court ordered a new hearing on the discovery issue.

Minnesota Mining & Manufacturing Co. v. Pribyl, 259 F.3d 587 (7th Cir. 2001). Seventh Circuit upheld trial court’s negative inference instruction after six gigabytes of music were downloaded on defendant’s hard drive the night before he was to turn it over pursuant to a discovery request.

Crown Life Ins. Co. v. Craig, 995 F.2d 1376 (7th Cir. 1993). Craig submitted R. 34 document requests. Eventually, the court ordered Crown to produce all the relevant documents. At trial, witnesses confirmed that the raw data requested by Craig and ordered by the court to be produced existed and that Crown’s witnesses had used the data in preparing Crown’s defense. The trial court sanctioned Crown for not producing the electronic data by barring testimony about the calculation of commissions and industry standards, which permitted Craig to recover the estimated future value of his commissions. On appeal, the limited sanctions were affirmed.

Lewy v. Remington Arms Co., 836 F.2d 1104 (8th Cir. 1988). Important Remington records were destroyed pursuant to a record retention policy. The Eighth Circuit held that the adverse inference instruction given by trial court was an error and case remanded for further, detailed consideration whether spoliation instruction should have been given.

Federal District Court:
Whitehall Specialties, Inc. v. Delaportas, 2005 U.S. Dist. LEXIS 4345 (W.D. Wisc. Mar. 10, 2005). Court issued default judgment for $2.2 million against the defendants after they failed to produce various types of documents. The court found that their excuses were not believable and that their attitude toward discovery was reckless.

MOSAID Techs. Inc. v. Samsung Elecs. Co., 2004 U.S. Dist. LEXIS 25286 (D. N.J. Dec. 7, 2004). Samsung failed to preserve potentially relevant email, and a magistrate judge granted Mosaid sanctions and an adverse jury instruction. The court found that Samsung failed to place a “litigation hold” on its document retention policy so its system continued to automatically delete email. The district court upheld the magistrate’s sanctions, finding that Samsung “willfully blinded itself” of its obligation to preserve potentially relevant data. Although the court held Samsung acted knowingly in destroying the emails, it also noted that negligent destruction of data was enough to warrant the adverse inference instruction.

Laura Zubulake v. UBS Warburg, LLC (Zubulake V), 2004 U.S. Dist LEXIS 13574 (S.D.N.Y. July 20, 2004). Court found that defendant was required to pay costs associated with the discovery dispute, and it held that an adverse inference instruction would be given. The court also sets forth the duties of counsel with respect to the preservation of electronic evidence. In particular, the court held that attorneys must take “affirmative steps” to ensure clients preserve evidence once litigation is reasonably anticipated. Instructing clients on preservation is not enough. Attorneys must do things such as directly talk to the “key players,” instruct all employees to produce relevant electronic evidence, and identify and secure all relevant backup tapes for a company's computer system.

United States v. Philip Morris USA Inc., 2004 WL 1627252 (D.D.C July 21, 2004). Philip Morris USA Inc. was ordered to pay $2.75 million in sanctions for destroying e-mails sought by the Justice Department. The sanction was justified based upon the company’s "reckless disregard and gross indifference" to a court order requiring preservation of relevant evidence. The company was further prohibited from using testimony at trial of any of the 11 top executives who allowed deletion of the e-mails. However, the court declined to issue an adverse inference instruction.

Metropolitan Opera Ass'n v. Local 100, Hotel Employees & Restaurant Employees, 2003 U.S. Dist. LEXIS 1077 (S.D.N.Y. Jan. 28, 2003). The court granted plaintiff’s motion for sanctions based upon the failure of defendant and defendant’s attorneys to search for relevant paper and electronic documents in response to discovery requests. The court ordered the most severe sanction possible -- judgment against the producing party plus attorney's fees. The court found defendant failed to meet its duty to “establish a coherent and effective system” to respond to discovery requests. Such a plan would have included (1) a reasonable procedure to distribute discovery requests to those potentially possessing responsive information and a method to account for its collection; (2) a way to explain the types of relevant and responsive information to the client; (3) a systematic process for document collection and retention, including an inquiry into the client’s document retention systems; and (4) the supervision of all discovery tasks carried out by non-legal personnel.

RKI, Inc. v. Grimes, 177 F. Supp 859 (N.D. Ill. 2001). The court found that the defendant, a former employee of the plaintiff company, intentionally destroyed evidence on his home computer and required him to pay $100,000 in compensatory damages, and $150,000 in punitive damages.

Pennar Software Corp. v. Fortune 500 Systems, Ltd., 2001 US Dist LEXIS 18432 (N.D. Ca. 2001). Defendant, a Pennsylvania entity, filed a motion to transfer the action to Pennsylvania, arguing that it lacked minimum contacts with California for personal jurisdiction purposes. While that motion was pending, plaintiff alleged that defendant had deleted web pages that listed its California office, and it brought a motion to enjoin further spoliation and for sanctions. The court granted the motion, requiring defendant to pay attorney fees and costs. The court noted that had defendant not stipulated to personal jurisdiction already, it could have issued an order pursuant to Rule 37 (b)(2) establishing personal jurisdiction as a sanction for obstructing discovery.

Trigon Insurance Co. v. United States, 204 F.R.D. 277 (E.D. Va. 2001). The government had retained an economic analysis group to provide expert assistance in the litigation. Trigon requested the production of relevant documents, including draft reports and documents circulated among testifying experts from the government. This expert firm indicated that these documents had destroyed pursuant to the firm’s document retention policy and the individual practices of the testifying experts. Through the use of computer forensics, a vast amount of the deleted documents were recovered, which would enable Trigon to effectively cross-examine several of the experts. One key expert’s documents were not recovered in sufficient amount for effective cross-examination. As sanctions, the court ordered the government to pay Trigon’s attorney’s fees and costs in connection with the spoliation issue and agreed to issue adverse inference instructions with respect to the destroyed documents of the one key expert.

GTFM, Inc. v. Wal-Mart, 2000 U.S. Dist. LEXIS 3804 (S.D.N.Y. March 28, 2000). A year after GTFM had requested electronic documents and Wal-Mart’s counsel represented the electronic documents were no longer available, Wal-Mart’s IT V.P testified in deposition that at the time of the earlier request, the electronic data existed but by the time of his deposition, the data was no longer available. Court ordered Wal-Mart to permit GTFM to inspect computer and records on-site and to pay GTFM’s expenses and legal fees in connection with discovery.

Danis v. USN Communications, Inc., 2000 U.S. Dist. LEXIS 16900 (N.D. Ill. 2000). Default judgment denied but sanctions imposed for failure to preserve electronic data. Each side was required to pay own costs and attorney’s fees.

Illinois Tool Works, Inc. v. Metro Mark Products, Ltd., 43 F. Supp. 2d 951 (N.D. Ill. 1999). A few days after the trial court issued an order requiring Metro Mark to preserve the integrity of all computers without spoliation, the key computer, which had functioned properly before the issuance of the court order, suddenly stopped functioning properly. Illinois Tool Works sought sanctions. The court rejected “as totally unconvincing” Metro Mark’s argument that it did not produce the electronic documents earlier because it did not understand that “documents” included both the hard copy and electronic versions. Sanctions imposed and Illinois Tool Works awarded reimbursement of fees and costs for spoliation.

Shamis v. Ambassador Factor Corp., 34 F.Supp. 2d 879 (S.D.N.Y. 1999) An adverse inference instruction was permitted where producing party allowed relevant documents in the hands of a third party to be destroyed without notifying court or opponents.

Proctor & Gamble Co. v. Haugen, 179 F.R.D. 622 (D. Utah 1998), aff’d in part and rev’d in part, 222 F.3d 1262 (10th Cir. 2000). Party claimed that P&G had not saved its e-mail during the pendency of the litigation and did not search and save e-mail of five key employees that P&G itself had identified as key employees to lawsuit. The court imposed financial sanctions on P&G for failure to preserve the key employees’ e-mail.

In re: Prudential Ins. Co. of American Sales Practices Litigation, 169 F.R.D. 598 (D.N.J. 1997). Response to preservation orders was haphazard. No willful misconduct was found but Prudential was grossly negligent. Plaintiffs’ harmed by the destruction. Sanctions were imposed included notification process to all employees, preservation manual, and training program.

Gates Rubber Co. v. Bando Chemical Industries, Ltd., 167 F.R.D. 90 (D. Colo. 1996). Good discussion on the purpose and range of sanctions for spoliation. Court awarded attorney’s fees and costs generated by deletion of word processing files. Evidence of intent fairly strong but counsel did not know what was in the documents Bando had already produced and was unable to argue with any credibility about the adverse impact of the “loss of evidence.”

Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68 (S.D.N.Y. 1991). Sanctions were imposed for failure to preserve relevant records; adverse inference instruction rejected but attorney’s fees and costs awarded to be paid by counsel and Hudson.

Computer Associates International, Inc v. American Fundware, Inc., 133 F.R.D. 166 (D.Colo. 1990). Default judgment entered for willful destruction of evidence in lawsuit.

Thompson v. General Nutrition Co., 593 F.Supp.1443 (C.D. Cal. 1984). Computer and hard copy records were destroyed by GNC after litigation started. Counsel has duty to preserve what counsel knows, or reasonably should know is: (1) relevant to the action; (2) reasonably likely to lead to discovery of admissible evidence; (3) reasonably likely to be requested during discovery; or (4) subject to pending discovery request. Default judgment and attorney’s fees and costs awarded.

Bowmar Instrument Corp v. Texas Instruments, 1977 U.S. Dist. LEXIS 16078 (N.D. Ind., May 2, 1977). Sanctions may be imposed when party willfully places itself in a position that it cannot comply with subsequent discovery order. Rumors circulating within a corporation about the threat of a lawsuit will not be sufficient to show the necessary knowledge.

Applied Telematics, Inc. v. Sprint Communications Co., 1996 U.S. Dist. LEXIS 14053 (E.D. Pa. Sept. 17, 1966). The normal backup and recycling of backup tapes was not suspended during litigation. Court decided that Applied Telematics had not demonstrated sufficiently that it had been prejudiced by the lost data compilations on backup tapes, but awarded Applied its reasonable fees and costs.

State Court:
Hildreth Mfg., L.L.C. v. Semco, Inc., 2003 Ohio App. LEXIS 713, 2003 Ohio 741 (Feb. 20, 2003). During discovery, the court issued a temporary restraining order prohibiting Hildreth from "destroying, concealing, or altering in any fashion any documents," including those on its hard drives. Semco later made a motion to mirror image certain drives, and while the issue was pending, Hildreth erased the drives in question. Semco moved for contempt. The trial court refused to grant Semco’s motion because there was no indication that the destroyed drives contained evidence favorable to Semco. The appellate court concurred. It further held that Semco had a presumption of prejudice but that the trial court was well within its discretion to find that Hildreth rebutted that presumption.

Crescendo Investments, Inc. v. Brice, 61 S.W.3d 465 (Tex. App. 2001). Appellate court upheld the trial court’s refusal to give a negative inference instruction because there was no evidence that the emails were destroyed with fraudulent intent and instead occurred in regular course of business.

Linnen v. A.H.Robins Co., 10 Mass. L. Rptr. 189 (Mass Super Court, June 15, 1999). A spoliation inference instruction was granted when opponent represented to the court that it would not destroy evidence. Additionally, moving party awarded all fees and costs associated with the dispute over the production of e-mail messages.

Circuit Court of Appeals:
McCurdy Group, LLC v. American Biomedical Group, Inc., 2001 U.S.App. LEXIS 10570 (10th Cir. 2001). Access to inspect hard drive was denied because the requesting party failed to demonstrate persuasive justification when other alternatives that do not create risk to attorney-client privilege and relevancy objections appear to be sufficient.

Sattar v. Motorola, Inc., 138 F.3d 1164 (7th Cir. 1998). The producing party was ordered to provide requesting party with hard drive, software, or onsite access to producing party’s computer system.

Fennell v. First Step Designs, Ltd., 83 F.3d 526 (1st Cir. 1996). Access to hard drive was denied in light of the lack of probative justification after documents had been provided on disk.

Federal District Court:
Bethea v. Civ. Action Comcast, 2003 U.S. Dist. LEXIS 21595 (D.D.C. Dec. 3, 2003).
Plaintiff’s motion to compel access to employer's hard drives was denied. The court found that plaintiff’s suspicion that defendant had failed to fully respond to document requests did not justify inspection.

In Re: Triton Energy Ltd, Securities Litig., 2002 US Dist. LEXIS 4326 (E.D. Tex., March 7, 2002). During depositions, several outside directors testified that they had never been asked to produce documents relevant to the litigation. Plaintiff sought access to defendant company’s servers and hard drives to determine what, if any, emails and documents had been deleted during the pendency of the lawsuit. The court granted the motion and asked the parties to agree upon a neutral computer forensic expert, who will retrieve the information.

The Antioch Co. v. Scrapbook Borders, Inc., et al., 210 F.R.D. 645 (Minn. 2002). In this copyright infringement suit, the court granted plaintiff’s motion to compel defendants to produce its computer media for inspection by a forensics expert. The court found that information on the defendants' computers may be discoverable and chose to adopt an “amalgamation” of the Playboy and Simon Property Group approach: Antioch was to select the expert and pay for the services, the expert would perform the work on defendant’s premise, and the expert would produce the data to the court and to defendants for a privilege and relevance search.

Ty, Inc. v. Le Clair, 2000 WL 1015936 (N.D. Ill., June 1, 2000). The court granted an emergency motion to compel access to computers on Ty, Inc.’s business premises.

Simon Property Group v. mySimon, Inc., 194 F.R.D. 639 (S.D. Ind. 2000). The court granted Simon Property’s motion to produce electronic version of documents and make certain computers available for inspection. The court said that computer records that have been deleted are documents and discoverable under R.34, and it ordered the examination of the hard drive in question to recover the deleted files.

Playboy Enterprises, Inc. v. Welles, 60 F.Supp.2d 1050 (S.D. Cal. 1999). In rejecting Welles’ argument against Playboy’s accessing her hard drive, the court said that R. 34 covers electronic data compilations, such as e-mail, and ordered Welles to make her computer available for inspection.

Gates Rubber Co. v. Bando Chemical Industries, Ltd., 167 F.R.D. 90 (D. Colo. 1996)

State Court:
Stasser v. Yalamanchi, 669 So.2d 1142 (Ct.App.Fla. 1996). To access a computer, the requesting party must present evidence that purged data can be recovered. If access is ordered, the trial court has to establish protocols to protect privileged information and potential harm to producing party’s data.

Circuit Court of Appeals:
Sattar v. Motorola, Inc., 138 F.3d 1164 (7th Cir. 1998) Sattar appealed trial court’s summary judgment dismissal, contending that the court abused its discretion in denying his motion to compel defendant to produce emails in a readable format. Trial court had given the parties a number of options, including cost splitting. The Seventh Circuit called this “entirely reasonable.”

Federal District Court:
Xpedior Credit Trust v. Credit Suisse First Boston, 2003 U.S. Dist. LEXIS 17497 (S.D.N.Y. Oct. 2, 2003). Requested disks and DLT tapes were deemed to be "inaccessible.” Applying the Zubulake cost-shifting test, the required the defendant to bear its own costs in producing the electronic data. The court noted the cost did not outweigh the potential value of the litigation and that the defendant had much greater assets and resources than plaintiff.

Laura Zubulake v. UBS Warburg, LLC (Zubulake III), 2003 U.S. Dist. LEXIS 12643 (S.D.N.Y. July 24, 2003). This discovery motion involved who would bear the costs of information from backup tapes. The court ordered a 75/25 split in cost allocation of the back up information; the defendant was to bear the greater burden. The defendant was required to bear all the costs of review once the documents were restored from an "inaccessible" format to an "accessible" format.

Laura Zubulake v. UBS Warburg, LLC, (Zubulake I), 2003 U.S. Dist. LEXIS 7939 (S.D.N.Y. May 13, 2003), the court found that Rowe test was incomplete and erroneously gave equal weight to all of the factors when certain ones should predominate. The court created a new seven-factor test: (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. The court found the factors must be weighted in descending order of importance.

Byers v. Illinois State Police, 2002 WL 1264004 (N.D. Ill. June 3, 2002). In an employment discrimination suit, the court found that plaintiffs, who had sought to recover archived emails from defendants, failed to establish that the search would uncover relevant information. The court required plaintiffs to pay the costs of the software needed to access the emails, and defendants were required to pay the costs of reviewing the emails for relevance and privilege.

Rowe Entertainment Inc. v. The William Morris Agency, et al , 2002 U.S. Dist. LEXIS 488 (S.D.N.Y. 2002). Court shifted costs of the production of emails and back-up tapes to the requesting party. If the producing party wanted to review for privilege prior to turning docs over then they must shoulder this expense. In making its decision, the court looked at the following factors: total costs; the parties’ ability to control costs; benefit to producing party; specificity of request; likelihood of successful search; availability from other sources; purpose of retention; and the parties’ resources.

Murphy Oil USA v. Fluor Daniel Inc., 2002 U.S. Dist LEXIS, 3196 (E.D. La 2002.) Using Rowe factors, court found that costs to retrieve emails from backup tapes should be shifted to the requesting party. However, the company was to bear the cost of culling pertinent email from non-responsive email and identifying privileged documents.

McPeek v. Ashcroft, et al, 2002 WL 929898 (D.D.C. 2001) Court employs a “marginal utility” test: how likely is it that the back up tapes contain information relevant to a claim or defense? And how does this relate to the undue burden test under 26(c). Court ordered defendants to restore the emails on back-up tapes over a one-year period. The parties will then meet and argue whether the results and costs warrant further searches.

Bills v. Kennecott Corp., 108 F.R.D. 459 (D. Utah 1985) Defendant recovered requested electronic documents and sought to shift costs. The court refused after looking at several factors: (1) whether cost to recover is “excessive”;(2) whether burden greater to producing party or requesting party; and (3) which party will benefit.

In Re: Brand Name Prescription Drugs Antitrust Litigation, 1995 U.S. Dist. LEXIS 8281 (N.D. Ill. June 1995). Court refused to shift cost of producing defendant’s email ($50-70,000) because it found the costliness of discovery is a product of a computerized record keeping system.

State Court:
Toshiba America Electronic Components, Inc. v. The Superior Court of Santa Clara County, 2004 Cal. App. LEXIS 2055 (Cal. Ct. App. Dec. 3, 2004). A data compilation was requested, and the court found that the requesting party must bear the reasonable expense of translating that data into a usable form.

Lipco Electrical Corp. and Action Electrical Contracting Co., Inc., J.V. v. ASG Consulting Corp., 2004 N.Y. Misc. LEXIS 1337 (N.Y. Sup. Ct. Aug. 18, 2004). Plaintiffs were given certain information in paper but not in electronic form as defendants claimed it would have to write a search program in order to do so. The court observed that under New York’s CPLR, “the party seeking discovery should incur the costs incurred in the production of discovery material.” The court decided it would not order an electronic production unless the plaintiff expressed a willingness to pay for the costs.

Linnen v. AH Robins Company, Inc., et al, 1999 Mass. Super.LEXIS 240 (Superior Court, June 15, 1999). Plaintiffs demanded restoration of 100 back-up tapes estimated to cost in excess of $1 million. The court refused to shift the costs, noting it was a risk taken by defendant when it decided to avail itself of computer technology.