e-Discovery Game Theory: Meet & Confer Over Cost-Sharing

In a case involving 1st Amendment and RICO allegations by two correctional officers, third-party electronic discovery was sought from different state law enforcement agencies. Couch v. Wan, 2011 U.S. Dist. LEXIS 68017, at *2 (E.D. Cal. June 23, 2011).

The Third-Party sought an order requiring cost-sharing of the electronic discovery.  Couch, at *10.

Cost-sharing in the Ninth Circuit applies the following factors from Zubulake v. UBS Warburg LLC:

1. Extent to which the request is specifically tailored to discover relevant information;

2. Availability of such information from other sources;

3. Total cost of production, compared to the amount in controversy;

4. Total cost of production, compared to the resources available to each party;

5. Relative ability of each party to control costs and its incentive to do so;

6. Importance of the issues at stake in the litigation; and

7. Relative benefits to the parties of obtaining the information.

Couch, at *10, applying Open TV v. Liberate Technologies, 219 F.R.D. 474, 476 (N.D. Cal. 2003), citing Zubulake v. UBS Warburg LLC, 216 F.R.D. 280, 284 (S.D.N.Y 2003).

Cost-shifting is only triggered when the requested information imposes an “undue burden or expense” that outweighs the likely benefit of the discovery. Couch, at *10, citing Fed. R. Civ. P. 26(b)-(c).

The classic test for whether electronic discovery is unduly burdensome turns on whether the discovery is in a reasonably accessible form, which is controlled by the cost of production.  Couch, at *10.

The Third-Party reported that they collected electronically stored information from 16 computers that amounted to 140 gigabytes [Note, the collection term used by the Court was “downloaded,” so it is not clear what process was used in collecting the data]. Couch, at *11.

The Plaintiffs proposed they provide a list of search terms to reduce the email and text file data set.  The Third-Party agreed to the proposal, but claimed they did not have the resources to search the data.  The Third-Party claimed they needed an outside contractor to search the ESI, which would cost $54,000.

Based on the cost, the Court ordered the parties to meet and confer on cost-sharing on conducting the search terms for processing the discovery.  Couch, at *11-12.

Bow Tie Thoughts

The meet and confer process can easily turn into the classic Prisoner’s Dilemma. Cooperation in discussing solutions to e-Discovery issues might go against an adversarial system at first blush, but it could be the answer to avoiding motion practice and higher discovery costs.

I encourage parties to discuss the type of consultant to be used for conducting searches across a data set.  For example, whether the proposed individual for searching electronically stored information is an IT consultant or an e-Discovery consultant.  This is extremely important, because IT solutions to e-Discovery problems can be like buttering toast with a screw driver.

The screw driver can work, but it can take more time, drive up costs and run the risk of using the wrong tool for the job.

Attorneys should discuss at a Rule 26(f) conference what process and software the consultant is using for search term analysis, such as DT Search for testing search terms or more advanced software such as Nuix, AD Labs, OrcaTec, Clearwell or LexisNexis Early Data Analyzer. 

Anyone of these software applications used by someone trained in them should be able to reduce the data set of standard email and text files to responsive information to a discovery request similar to the one in this case at a reasonable cost.  Granted, exotic files can cause additional challenges, but again, this is an excellent topic for a meet and confer. 

Many attorneys falsely assume that using an e-Discovery consultant is cost-hibtative.  It would be very interesting to see RFP responses on the proposed cost of searching 140 gigabytes of email/text files and whether the responses are below $54,000.  This may turn on the number of search terms proposed, however, it would be an interesting experiment.

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg in 2013, 2014, and 2015, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.