Concept
Discoverability of ESI
Scope of discovery, proportionality, and e-discovery
Discoverability of ESI
Rule 26(b)(1) reaches any nonprivileged matter that is relevant to a claim or defense and proportional to the needs of the case, and it says nothing about the medium that holds the matter.1 Electronically stored information (ESI) therefore faces the same three tests as a paper memorandum: privilege, relevance, and proportionality. Form answers different questions: which discovery tool fits the demand, how the material will be produced, and whether and how the court will weigh the cost of compliance.2 This section explains why ESI is discoverable on the same terms as paper, why it still strains the system, and who pays when the data is easy to reach. The harder cost problems, which arise when data is difficult to retrieve, belong to the sections that follow.
Electronic Data Is Discoverable
In Zubulake v. UBS Warburg LLC, a former employee suing for gender discrimination and illegal retaliation had herself produced 450 relevant e-mails and reasonably believed her former employer held more.3 When she requested them, the employer replied that restoring the e-mails would cost $175,000, not counting attorney time to review them, and she moved to compel.4 The employer apparently conceded her entitlement to the discovery. It spent most of its effort urging the court to shift the cost of production to her.5
The court started from Rule 34, which lets a party request any document, “including writings, drawings, graphs, charts, photographs, phonorecords, and other data compilations.” That inclusive description accords with changing technology and makes clear that Rule 34 applies to electronic data compilations, so “[e]lectronic documents are no less subject to disclosure than paper records.” The same is true of documents in current use and of documents that were deleted and now reside only on backup disks.6
Deleted data is the hard case, and ordinary computer practice shows why the rule reaches it. In the computer world a “deleted” file often remains on the hard drive until other data overwrites it, and automatic backups may already have copied it off the employees’ machines.7 The larger reason is where information now lives. By 1999, 93 percent of all information was generated in digital form, an estimated 30 percent of business ESI never appears in printed form, and most e-mail is never printed and is probably written without anyone intending, or even knowing, that it will be preserved electronically.8 A rule confined to paper would miss much of the record.
The text of the rules has changed since Zubulake, so flag the change whenever you cite the case. Until December 1, 2006, the discovery rules assumed that most information was stored in documents; they authorized discovery of “data compilations” but were not crafted to deal clearly and effectively with ESI.9 The amendments then rewrote the definitions in Rules 33 and 34 to make clear that ESI is discoverable.10 Rule 34 now reaches documents, ESI, and things in another party’s possession or control, and its scope is the same as that of the discovery rules generally.11 An electronic file must therefore still be nonprivileged, relevant, and proportional before a party has to produce it.
Why ESI Strains Discovery
ESI strains discovery less because it is electronic than because there is so much of it and because it varies so widely in how readily it can be retrieved. The vast bulk of documents are now created electronically, and many exist only in digital form, on employees’ computers, main server hard drives, CD-ROMs, backup tapes, and other electronic devices.14 The discovery phase of a case against a large corporation might turn up hundreds of CD-ROMs, each holding the equivalent of 30,000 to 40,000 printed pages.15 Reviewing so large a universe of documents is itself a source of expense.16 Many electronic files also carry metadata, which records when a file was produced, when earlier drafts were written, and to whom it was sent.17
Format is the second source of strain, because electronic formats differ in how readily they can be accessed and searched.18 Zubulake divided electronic data into accessible and inaccessible. Accessible data is stored in a readily usable format and needs no restoration or other manipulation, although the time needed to reach it may range from milliseconds to days. Inaccessible data is not readily usable: backup tapes must be restored, fragmented data must be de-fragmented, and erased data must be reconstructed before anyone can use it.19 Finding a relevant file on a backup tape means restoring the tape, viewing its directories, and searching them for specific files, and if the file is not on that tape, the whole process must be repeated for each backup tape.20
Cost then raises a proportionality question. When the costs of retrieval and review climb into the tens of thousands of dollars or beyond, a legitimate question arises whether the expense is proportional to the need for the information and its potential value to the litigation.21 Since the 2015 amendments, proportionality sits inside the definition of scope itself. Before then, it served as a basis for limiting discovery that was otherwise relevant and nonprivileged.22
Electronic data is not burdensome as a category, however. Whether production is unduly burdensome or expensive turns primarily on whether the data is kept in an accessible or inaccessible format, a distinction that corresponds closely to the expense of production.23 Paper works the same way: a paper document is accessible if it is readily available in a usable format and reasonably indexed.24 The rules later wrote accessibility into Rule 26(b)(2)(B), first added in 2006 after Zubulake, which provides that a party need not provide discovery of ESI from sources it identifies as not reasonably accessible because of undue burden or cost.25
Who Pays for Accessible Data
The responding party ordinarily pays to comply with discovery, and Zubulake treated that default as the starting point for electronic data. Under the discovery rules the presumption is that the responding party bears the expense of complying with requests, although it may invoke the court’s discretion under Rule 26(c) for protection from undue burden or expense, including an order conditioning discovery on the requesting party’s payment of the costs.28 The 2015 amendments made that authority explicit. Rule 26(c)(1)(B) lets the court, for good cause, specify terms for discovery, including the allocation of expenses, and courts have enormous discretion in shaping such orders.29 Because electronic evidence is no less discoverable than paper, the presumption applies to it, and cost shifting should be considered only when electronic discovery imposes an undue burden or expense on the responding party.30 Production is unduly burdensome when its burden or expense outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues, and the importance of the discovery in resolving them.31 Rule 26(b)(1) now states those proportionality considerations itself and adds the parties’ relative access to relevant information.32
The court applied that framework to the employer’s own systems, and the answer differed by source. For active mail files and e-mail stored on optical disks, the court said it would be wholly inappropriate even to consider cost shifting: the employer kept that data in an accessible, usable format and could respond cheaply and quickly, so the producing party should bear the cost, as in most typical discovery requests.33 E-mail on backup tapes was different. The employer had identified ninety-four potentially responsive tapes, none currently accessible, and searching them would require a costly, time-consuming process, so it was appropriate to consider cost shifting.34 All of that e-mail was potentially responsive and electronic. What differed was the work standing between the data and a usable form, and that work decided whether cost shifting was even on the table. Treating the electronic character of data as itself the burden is the error to avoid.
The court did not resolve the backup-tape question at once. It ordered the employer to produce all responsive e-mail from its optical disks and active servers at its own expense, and to produce responsive e-mail from any five backup tapes that Zubulake selected, also at its own expense. The employer then had to file an affidavit detailing the results of its search and the time and money spent, after which the court would conduct the cost-shifting analysis.35 The factors the court listed for that analysis include the total cost of production compared to the amount in controversy and to each party’s resources, each party’s ability and incentive to control costs, the importance of the issues, and the relative benefits to the parties of obtaining the information.36 Later sections return to this sampling device and to the factors.
Zubulake predates both the 2006 and the 2015 amendments, and its wording belongs to the earlier regime. Its Rule 34 analysis speaks of “data compilations,” and it was decided before proportionality entered the definition of scope.37 Its survey of cost-shifting approaches runs from the refined eight-factor test of Rowe Entertainment, Inc. v. William Morris Agency, Inc. to a cruder application of a proportionality test.38 Rule 26(b)(2)(B) now governs. It requires the party from whom discovery is sought to show, on a motion to compel or for a protective order, that the source is not reasonably accessible because of undue burden or cost. If it makes that showing, the court may still order discovery if the requesting party shows good cause, and the court may specify conditions.39