E-mail: A Treasure of Possibilities

E-mail is a vital source of communication in virtually every business.   In many instances, E-mail communications provide candid, if not incriminating, discussions amongst employees.  Also, simply because E-mail is deleted from a person’s hard drive, doesn’t mean that it’s not available for discovery.  In many instances, E-mail communications provide candid, if not incriminating, discussions amongst employees.  Discovery of E-mail, therefore, should be high on the priority list.

For example, in Linnen v. A.H. Robins Co., the family of a woman who died after taking the diet pill fen‑phen sued the drugs' makers. The plaintiffs claimed the drugs, taken in combination, caused the woman to develop a deadly lung disorder.^[1]  Computer forensic engineers hired by the plaintiffs were able to recover an e‑mail from one A.H. Robins employee to another that read: "Do I have to look forward to spending my waning years writing checks to fat people worried about a silly lung problem?"  Shortly after this revelation, the case settled.

Motions to Compel

Surprising as this may come to some plaintiffs’ lawyers, the defendants do not always give over e-data willingly.  There are a number of hurdles to a defendant’s capacity to produce e-data.  First, it may be difficult, time-consuming, and/or expensive for the defendant to segregate relevant from non-relevant or privileged from non-privileged information when it is stored in electronic format.  For example, parties are often required to search back-up tapes, but such tapes are generally designed only for disaster recovery, not for retention and data retrieval.  The cost and burden of reconstructing, restoring, and searching data on such tapes, therefore, can be enormous.^[2]  Second, the operating systems for both the producing and the discovering party may be incompatible. A further potential problem relates to "hidden" evidence. There may be more relevant information stored digitally than normally would exist in an all-paper environment. Deleted information may be stored unintentionally in backup files. However, the deleted data may not be stored indefinitely: information of this sort may be overwritten by the normal operation of the computer - once hard-drive space has been exhausted, the computer begins to write over old non-saved information bit by bit.  Solutions to this problem - to suspend business activity in order to preserve this information, an extremely costly solution for the producing party, or to preserve every document of the company, which could lead to a system crash - are imperfect at best.^[3]

There are several cases that address the cost burden in e-discovery.  It is not the intent of this paper to go through an exhaustive analysis, as the law is constantly changing, and the subject matter is voluminous and often cases specific.^[4]  However, any discussion of this topic must start with a reviewing of Judge Shira Sheindlin’s compelling analysis in Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. 2003) .  In a sex discrimination case against a financial services company, the plaintiff requested e-mail beyond the approximately 100 pages produced by the defendants.  She presented substantial evidence that more responsive e-mail existed, mostly likely on backup tapes and optical storage media.  The defendants objected to the production, which they estimated would cost $175,000.  The judge held that the plaintiffs were requesting relevant information, but the issue of payment became central.  The court held that for data kept in an accessible format, the usual rules of discovery apply.   The responding party should pay the costs of producing responsive data.  A court should consider cost shifting only when electronic data are relatively inaccessible, such as on backup tapes.^[5] 

In its analysis, the court rejected the previously used factors set forth in Rowe v. William Morris Agency, Inc., 51 Fed R. Serv. 3d (West) 1106; aff’d, 53 Fed. R. Serv. 3d (West) 296 (S.D.N.Y. 2002).^[6]  In Zubulake, Judge Sheindlin developed a seven factor test, which, in order of importance or weight, were:

1.         The extent to which the request is tailored to discovery relevant data;

2.         The availability of those data from other sources;

3.         The total cost of production, relative to the amount in controversy;

4.         The total cost of production, relative to the resources available to each party;

5.         The relative ability and incentive for each party to control its own costs;

6.         The importance of the issues at stake in the litigation; and,

7.         The relative benefits to the parties in obtaining those data.