eDiscovery Daily Blog

• July 18, 2014

In Zeller v. So. Central Emergency Med. Servs. Inc., 1:13-CV-2584 (M.D. Pa. May 20, 2014), Pennsylvania Magistrate Judge Karoline Mehalchick used the Zubulake seven factor test to rule that the costs for restoring and searching the plaintiff’s emails should be shared, up to a maximum contribution by $1,500 by the plaintiff.

In this wrongful termination case based on plaintiff’s claims of retaliation by the defendant after the plaintiff took a leave of absence under the Family and Medical Leave Act (FMLA), the parties began the eDiscovery process to recover the plaintiff’s emails and asked the Court to resolve the issue of “first review” of documents identified as a result of an agreed upon search of Plaintiff’s emails, and the matter of cost-sharing.

The plaintiff asserted that he is entitled to a “first review” of all documents to be produced while the defendants asserted that after forensic retrieval of emails from Plaintiff’s email account, all non-potentially privileged documents should be forwarded directly to the defendants to save time.  Noting that “Plaintiff has no obligation to produce emails that are wholly irrelevant to either party’s claim or defense” and that broad search terms such as the plaintiff’s wife’s name was used, Judge Mehalchick ruled that the plaintiff was entitled to a “first review” of the results of the forensic examination of his email account.

Regarding the cost sharing request by the defendants, Judge Mehalchick referenced Fed. R. Civ. P. 26(b)(2)(B) and determined that the data requested was inaccessible without the forensic examination and used the seven factor balance test below for cost-shifting from Zubulake v. UBS Warburg to decide whether forensic examination costs should be shifted.  The factors are:

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.

Judge Mehalchick stated that “the parties were unable to identify the total cost of production of the search, compared to the amount in controversy and the resources to each party”.  However, with regard to the other five factors, she ruled that “the request is specifically tailored to discovery relevant information”, that “there is no other source which could possibly be available”, that since the parties have agreed on a forensic examiner “neither party has any more ability than the other to control the cost”, that “the information sought is important to the issues at stake in the litigation” and that “it is to the benefit of both parties to obtain the information sought”.

As a result, Judge Mehalchick found “that some cost-shifting is appropriate” and ruled “Plaintiff and Defendant should share equally in the cost of restoring and searching Plaintiff’s emails, up to a maximum contribution by Plaintiff of One Thousand Five Hundred Dollars ($1500.00).”

So, what do you think?  Was the Zubulake test applied appropriately?  Please share any comments you might have or if you’d like to know more about a particular topic.

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