With the incredible evolution, advancement and adoption of technology over the past twenty five years has come a seismic shift in the manner in which business is conducted. Primary amongst these changes has been the use of technology to create electronic documents. Electronic documents have considerable advantages when compared to traditional paper documents. Electronically created documents can be sent and received instantaneously, and can be transmitted, stored, and created at little cost. Modern technology provides a medium for limitless production of electronic documents without the drawbacks associated with traditional documents. An electronic document is any document created digitally, with the aid of a computer or computer software, such as email, records, or computer document files in a variety of formats.[ii]
Global business culture has embraced this transition to electronic documents, with computers becoming the primary method of communication across the business world. The creation of email documents has quickly outpaced the use of traditional mail services, with businesses in America generating over 3.25 trillion email messages in 2002, compared with just over 2 billion pieces of mail processed by the United States Postal Service in the same year.[iii]In addition to email, approximately eight billion electronic file documents are created globally each year. Since 2000, approximately 93% of all information is first generated in electronic format, of which much is never produced physically. With technological advances allowing for the creation of new electronic documents anywhere and everywhere, the amount of data created will only continue to increase.[iv]
Electronic documents are not only easy to create and reproduce; they are difficult to completely destroy. When a paper document is shredded, it can no longer be retrieved. The same cannot be said for an electronic document that has been deleted or erased. When an electronic document is deleted, the computer marks the space on the storage media used by that document as free. That space can then be overwritten by new data. However, until that space is actually used and overwritten, the data can still be obtained retroactively.[v]Another caveat is that there are generally several copies of documents created on a variety of storage media, so simply deleting a document from one source will not delete it off the remaining storage devices. Thus, it is possible to have a copy of an electronic document on an email server, on a computer harddrive, on a smart phone, and on a backup server at the same time.[vi] This problem is only exacerbated by cloud computing, in which electronic documents are stored on remote servers that can be accessed by a number of devices.[vii]
An additional consideration is the fact that electronic storage media is cheap. Any electronic document stored on electronic storage media is considered “electronically stored information” (ESI). Businesses no longer need to rent warehouses to store their paper business records. One gigabyte of electronic data storage can cost as little as $0.05 and can store the equivalent of 500,000 typed pages.[viii]Therefore, businesses additionally are no longer required to permanently delete any document because of the low cost to maintain the documents as records, as this can also be helpful in recovering lost work.
Transitioning to a paperless business model has benefits and disadvantages in terms of legal implications. The volume of information in this possession or under the control of a business has grown exponentially, and thus presents challenges during litigation. During litigation, discovery of traditional documents related to the suit at issue has always been allowed in the United States. With the emergence of technology and the resulting increase in ESI, American courts have allowed discovery of ESI as well as traditional documents, terming it “e-discovery.”[ix]
The tremendous amount of ESI in the possession of businesses has driven the discovery cost of this ESI sky high.[x]One would assume that a paperless business model would lead to reduced discovery costs, as documents could be searched for key words and terms in order to identify relevant material. However, the opposite has occurred, as the volume and availability of ESI has created an amount of data that is expensive to retrieve and search. ESI is voluminous and distributed, fragile, exists in many forms, contains non-relevant information and metadata, and is generally maintained in complex systems.[xi]With so many backups and copies, it is difficult to determine exactly what ESI a business possesses for discovery purposes.
With the increased volume of ESI comes an increased cost of e-discovery. The cost of discovery has increased to the point that an entire new industry has been created; firms are now available that perform no function other than searching through ESI of businesses, looking for information that is discoverable or otherwise relevant to their cause. Costs associated with producing discovery requests include searching ESI, extracting relevant documents and materials, reviewing them for privilege, and then paying attorney’s fees.
Traditionally, the cost of discovery is borne by the producing party. This principle has translated to e-discovery as well. With this shift in technology, the traditional discovery model needed to be modified. Given the volatile nature of e-discovery, and the possibility of the cost creating an undue burden on the producing party, American courts have started implementing cost shifting principles that allow for all or part of the costs of production to be shifted from the producing party to the requesting party.[xii]With the advent of ESI, this principle is becoming increasingly important. European courts have also addressed the principle of cost shifting dealing specifically with ESI. Fundamental differences in each judicial system have led to different outcomes when dealing with e-discovery in America compared to Europe.
II. The Evolution of E-discovery Cost Shifting Principles in America and Europe
In the American judicial system, there is an active presumption that the party receiving a discovery request will bear the costs of production for documents associated with the compliance of discovery requests.[xiii] European courts, however, take a different approach. The European approach to the discovery cost burden stems from the strict privacy control and data protection beliefs, as well as from elements of traditional European legal procedure. In Europe, the party that loses a case is generally responsible for all of the victorious party’s legal fees and court costs.[xiv]Included in these fees and costs are the costs of discovery.[xv]Thus, in many ways, the European model has already embodied much of what the American federal judiciary system has recently adopted. However, although the countries in Europe follow the presumption of awarding attorney’s fees and court costs to the prevailing party, the customs amongst the countries in terms of the percentage of fees typically awarded varies and there is no clear leading principle or guideline.
Both America and Europe have addressed e-discovery and the related challenges to a certain degree. In 1970, Rule 34 of the Federal Rules of Civil Procedure (FRCP) was amended to include “in accord with changing technology” and “stored in any medium.” This ensured that ESI is discoverable within the traditional discovery rules in America.[xvi] In Europe, the 1998 European Union Privacy Directive (EUPD) was the first time the issue of e-discovery was addressed by Europe, albeit indirectly. The EUPD placed strict regulations on what is considered ESI, as well as stringent regulations on whether ESI is discoverable and can be transferred.[xvii]
A. Modern Cost Shifting in American Law
Under the FRCP, parties are allowed to obtain discovery regarding any non-privileged matter that is relevant to the claim or defense of any party.[xviii]The FRCP also comes with the presumption that the producing party will bear the expense of complying with discovery requests, and also to shift discovery costs to the requesting party upon a finding of good cause. However, under Rule 26(c), courts have discretion to grant protective orders against discovery requests that will create an undue burden or expense on the producing party. Also, courts can grant orders conditioning discovery on the requesting party’s payment of discovery costs. An undue burden is determined by the needs of the particular case, the amount in controversy, each party’s resources, the importance of the issues in litigation, and the importance of the proposed discovery.[xix]This discretion has become increasingly important when dealing with expensive e-discovery requests.
With the costs of retrieving, reviewing, and producing e-discovery easily reaching millions of dollars, courts can no longer use the traditional approach to paying for discovery. Cost shifting amongst litigating parties has become a key consideration for courts.[xx]Among the most important factors for considering cost shifting is the accessibility of the information requested. Accessibility will directly affect the cost of production and the courts have addressed this issue through case law.
In 2003, however, the court in UBS, Inc. v. Zubulake created a test for shifting e-discovery costs, expanding on another court’s prior test.[xxi] In Zubulake, a UBS employee requested e-discovery of a variety of ESI related to an employee discrimination suit. The court in that case criticized the prior Rowe Ent., Inc. v. William Morris Agency, Inc test as undercutting the traditional presumption that the responding party pays for production, and highlighted the fact that the test allowed for “fishing expeditions” for parties as long as they were willing to finance discovery. The Rowe test also created an artificial presumption of cost shifting whenever e-discovery was involved because of its mechanical approach. Instead, the Zubulake court created a new seven factor test that modifiedRowe.[xxii]The court identified the following factors, in order of decreasing importance:
(1) extent to which the request is specifically tailored to discover relevant information;
(2) availability of the information from alternate sources;
(3) cost of production compared to the amount in controversy;
(4) total cost of production compared to each party’s available resources;
(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 when dealing with public policy issues; and finally
(7) relative benefits to the parties of obtaining the information.[xxiii]
Importantly, the Zubulake opinion cautioned against cost shifting becoming a presumption in any case involving e-discovery. Instead, cost shifting is to be considered only when e-discovery creates an undue burden or expense, and if shifting is warranted, the percentage remains under the court’s discretion. Additionally, Zubulake held that an important consideration in determining undue burden was the type of storage media involved. The case distinguishes between accessible and inaccessible data formats and breaks down all storage media types into five categories.[xxiv]Each of the five categories is described in terms of accessibility and resulting burden on the producing party. In the wake of Zubulake, while the majority of courts have adopted the proposed test, some courts have not, citing a need for the factors to be weighted differently.
With Rule 34 expanded via amendment to include e-discovery, American courts have tackled the issue of e-discovery directly. Rule 34 stipulates that the requesting party can determine the format of production the producing party must provide, including native file formats. This is a strategic concern for parties, due to the abundance of metadata that can be obtained from native files. If the requesting party does not request a specific format, then the producing party can provide the documents in the format in which they are normally maintained or any other electronically searchable form.[xxv]For information that is not easily accessible, Rule 26 provides guidance.[xxvi]
Aiming to unify the different approaches, the evolution of cost shifting continued with amendments to Rule 26 in 2006. The amendment to Rule 26 created a two-tiered approach to e-discovery that, most importantly, found reasonably inaccessible data to be presumptively undiscoverable. This presumption could be overcome only by a showing of good cause, which could be found by considering the seven factors outlined in the Advisory Committee’s Notes for Rule 26(b)(2).[xxvii]The seven factors given are:
(1) specificity of the discovery request;
(2) quantity of information available from other and more easily accessed sources;
(3) failure to produce relevant information that seems likely to have existed but is no longer available from more easily accessed sources;
(4) likelihood of finding relevant, responsive information that cannot be obtained from other sources;
(5) predictions as to the importance and usefulness of the further information;
(6) importance of the issues at stake in the litigation;
(7) the parties’ resources.[xxviii]
Although similar, the Rule is not simply a codification of the Zubulake test. The Rule borrows from Zubulake, but focuses on whether or not discovery should be allowed. If it is not, then there is a presumption that the data is not discoverable. This then shifts the burden back on the requesting party to show good cause. Courts that have confused Rule 26 as a codification of Zubulake have undermined its uniform application.[xxix]However, the requesting party must consider the proportionality test outline in Rule 26(b)(2)(c), which limits discovery to materials where the burden to produce proposed discovery is outweighed by the likely benefits. Rule 26(b)(2)(c) is referred to as the “Proportionality Standard.”[xxx] Under this rule, courts can limit both the frequency and extent of discovery if it determines that there is another source from which the information can be more easily obtained, or if the likely benefit is outweighed by the burden or expense of the proposed discovery, considering the needs of the case, the amount in controversy, each party’s resources, the importance of the issues in the action, and the importance of discovery in resolving the issues. The proportionality principle allows courts to resist excessive discovery demands because the court has discretion to allow parties to withhold relevant and non-privileged information because the burden outweighs the potential benefit. The key difference between Zubulake and Rule 26 is that Zubulake is conditioned upon the finding of accessibility of data, and the test lays out different levels of accessibility for the spectrum of storage media.[xxxi]
On the other hand, Rule 26 states that parties do not have to provide discovery of ESI from sources that the party has identified as not reasonably accessible, focusing on whether or not discovery should be allowed. The Rule does not differentiate between types of storage media, but provides an explanation of what is reasonably accessible in the Committee Notes.[xxxii]A determination of accessibility is found by considering the time, effort, and cost of retrieving the information. By allowing individual parties to determine what is accessible, the Rule allows flexibility for application of cost shifting in cases involving individuals as parties. For example, if an individual is the defendant in a case, producing discovery even from what is termed “active” media in Zubulake may still be too costly or create an undue burden on that individual. Under Zubulake, however, that individual would still be forced to produce the documents and would not be entitled to cost shifting. Lastly, the Rule does not provide any differentiation in terms of weight between the factors, unlike the weighted Zubulake test.[xxxiii]
Rule 26(b)(2) is applicable to any type of discovery, particularly in instances where data is inaccessible, lending the majority of its application to e-discovery. However, courts have not uniformly applied Rule 26(b)(2) in practice.[xxxiv]Courts have found tension between the Zubulake definition of accessibility, and subsequent separation of storage media into categories, and the definition provided in Rule 26 of media that a party has determined is not accessible and would create an undue burden. Even after the amendments, some courts have continued to apply the Zubulake test, and also used the brightline separation of accessible and inaccessible storage media. Additionally, because courts have not routinely implemented Rule 26, it is subject to varying interpretations by different courts.
B. Modern Cost Shifting in European Law
Discovery, typically called disclosure, in Europe is fundamentally different than the American model. A combination of privacy laws, tradition, and diversity amongst member countries has caused Europe to develop a unique approach to discovery.Traditionally, the losing party in a European court is liable not only for the final judgment, but for a portion of the winning party’s attorney’s fees and litigation costs as well.[xxxv]The objective fact of defeat is regarded as sufficient grounds for imposing costs. Because the traditional model has sufficed, there has not been a need to codify or create statutes specifically addressing e-discovery. Courts have ruled that the traditional European discovery model applies to e-discovery as well. The ramifications of this approach permeate the entire European judicial system.
Discovery costs, including e-discovery, are included in a party’s cost of litigation.[xxxvi]Therefore, a losing party is directly responsible for the winning party’s e-discovery costs. Because of this, each party has implicit incentive to minimize the costs of e-discovery by providing a limited number of specific discovery requests. Additionally, this system minimizes “fishing expeditions” by parties that are not sure whether or not they have a meritorious case. By holding the losing party accountable for discovery costs at the end of trial, each party will work independently to ensure that the costs of discovery are proportional to the amount in controversy.
Compared to the American system, discovery requests in Europe are treated differently. Parties must request documents with a high level of specificity, and although they can obtain information regarding their opponent’s storage systems, they cannot provide blanket discovery requests. The European system allows courts to maintain rigid control over the scope of discoverable material. European courts use a proportionality standard to determine whether or not to allow discovery. The court considers (1) the importance of the requested information; (2) the amount in dispute; (3) the cost of production; (4) the ease of production; and (5) the financial position of the parties.[xxxvii]
Strict privacy laws have affected e-discovery. The European Union (EU) enacted the European Union Directive on Data Protection (Directive) in 1998. This Directive explicitly impacted e-discovery by severely limiting the scope of what information is discoverable. The purpose of the Directive was to create a uniform standard for all member countries regarding the transfer and use of personal data. The European attitude towards privacy, especially concerning electronic data, is stricter than the American approach, and the Directive embodies this cultural concern. Included in the Directive are definitions of “personal data,” “process,” and “transfer.” These terms are of legal significance in e-discovery because the Directive binds European courts.
In Europe, there is a heavy presumption against allowing discovery of personal data. The definition of personal data comes from the Directive, where it has a broad definition and is interpreted to include any and all email. Personal data includes any data that may relate to or provide information that relates either directly or indirectly to a given individual. Email is personal data because it includes the identity of both the sender and recipient. Because email is considered personal data, it is generally not discoverable, regardless of whether the email was created during the course of business or a private email sent from a private email account. In general, the only instance where email discovery will be granted is if the requesting party can provide specific information regarding the persons between which the communication took place, the nature of the discussion, reasons why that communication is relevant, and a description of what information is required so the remainder can be redacted. However, only a readable copy of the email will be provided as the Directive essentially bans the transfer of native files, citing privacy concerns. Native files contain personal information and other information that may not be directly related to the case at issue and thus cannot be discoverable.[xxxviii]However, once a requesting party has fulfilled its burden of proving that an email, or any other personal data is required and should be discoverable, the producing party cannot provide it unless they have the right to “process” the information, and subsequently, the right to “transfer” the information. The Directive defines process as any collection, storage, retrieval, or transmission of data. Copying information from one source to another is considered processing.
The e-discovery that is allowed by courts is generally more expensive than e-discovery in America. This is primarily because there are several different cultures, languages, and business practices that are used within the EU. In a suit filed in a different country, a party will also generally need to hire local counsel, further driving up litigation costs. This leads to an added consideration; the amount of time spent in litigation. European courts recognize that there may be suits involving different countries. By allowing a larger scope of e-discovery, the courts will increase the length of time parties are litigating due to logistical and practical concerns.
III. A Comparative Analysis Between American and European Approaches to Cost Shifting and a Proposed New Approach
Both American and European courts have recognized the importance of e-discovery and the need to create specially tailored rules and guidelines to assist courts in determining when cost shifting is appropriate. Accordingly, both judicial systems have implemented rules by which cost shifting can take place between parties. However, each system of cost shifting has certain advantages and disadvantages that prevent the system from reaching an optimal state. An ideal system would incorporate elements of both American and European judicial theories.
A. Comparative Analysis: America vs. Europe
The American approach to cost shifting has several advantageous qualities. By allowing cost shifting in cases of undue burden, the theory is that the producing party will not be bullied into a settlement or have excess court costs. Also, adopting innovative, expensive new technologies will not disadvantage parties because they may not have to pay the production costs during discovery. However, application of the law does not reflect these theoretical benefits in the American system.
With the 2006 amendments to the FRCP, American law made a strong attempt to create concrete guidelines for courts to use when determining cost shifting. By creating a list of factors, the law has become clearer and more predictable. However, the law does not serve its purpose when it is not used properly. One of the major issues with the American approach to cost shifting is the lack of uniformity in application. Some courts have adopted case law standards that are not identical to the Federal Rules of Civil Procedure, while others have adopted Rule 26 from the FRCP.[xxxix] Additionally, implementation of the analysis varies across districts. Some courts have a tendency to grant cost shifting, using a liberal approach to the analysis involved rather than denying meritless discovery. Other courts use a more balanced approach to cost shifting which results in fewer granted requests of cost shifting. This creates a statistical advantage for parties to file in certain districts. By filing suit in a district more likely to grant some form of cost shifting, a party can obtain a distinct advantage, which leads to a second issue with the American approach: a party that is wealthier than its opponent, or else more willing to pay for e-discovery can have better access to discovery materials.
The European model of cost shifting shares some of the application issues that the American model has. The European model lacks uniformity – lack of uniformity is inherent due to the nature of each individual country’s laws, regulations, and interpretations of the law. Although the same can be said for different circuits within the American judicial system, the FRCP is uniform governing law and increases certainty when dealing with cost shifting. Europe does not have one uniform governing set of laws, rather there are general guidelines provided and counties are free to create unique sets of laws within those guidelines.[xl]
Another issue with the American system is that when it comes to e-discovery, courts are quick to abandon the traditional presumption that the producing party pays. This provides parties with the opportunity to potentially “buy” discovery, and thus bully an opponent with fewer resources into a favorable settlement. If a party has a greater willingness to pay for discovery, they are at an advantage during litigation simply because of the volume of information they can discover. This issue is avoided under the European model because the loser is responsible for e-discovery costs, regardless of who requested or produced. However, under the European model, attorneys have an incentive to drive up litigation costs. Regardless of who ends up with the bill, the attorneys will get paid.
Additionally, the European model has several desirable traits inherent in the nature of the system. There is no need to force a conference between the parties in order to minimize discovery costs; the chance of being responsible for both parties’ costs at the end of trial provides an inherent incentive to minimize costs. With the inherent advantage to avoid excess e-discovery costs, the European model has a built in check against parties bullying each other by threatening to drive up discovery costs.
The European model also encourages parties to be judicious with e-discovery requests. By knowing that they potentially will have to bear the costs themselves, parties will create more specific, tailored requests and are generally prevented from fishing expeditions. By limiting the scope of discovery, the European model creates a system with a lower maximum cost since not nearly as much information is presumed discoverable.
Another key difference between the American and European models is that in Europe, if the court allows e-discovery, parties are only obligated to produce non-privileged documents that they intend to rely on, weaken or support either party’s arguments, and any documents the court requires. However, the court maintains discretion over every step, and the court applies its proportionality standard to the facts of each individual case.
B. An Ideal Standard
The aim of any e-discovery cost shifting approach should be to maintain efficient administration of justice, uniform results, and fair access to the discovery process regardless of an individual party’s wealth.[xli]An ideal approach to e-discovery and cost shifting would not only shift costs when necessary, but also aim to reduce costs altogether.
As e-discovery costs escalate, courts must consider a hybrid cost shifting approach between the American and European models that resorts to cost shifting only when there is a greater than 50% likelihood of uncovering critical information in the requested discovery. Courts will be able to determine this using an ex post approach after sampling the requested discovery. By uncovering critical information, the truth seeking function of the law is served. There is no bright line approach to cost shifting that will withstand advances in technology.The law reacts to technology, and the delay in creating and adopting legislation is not an immediate process. Although a bright line standard would promote uniformity amongst courts and create a more predictable outcome, cost shifting should not be outcome determinative for a case. Rather, cost shifting should be a fact specific determination made under the courts discretion after considering the seven factors provided under Rule 26. These factors should be weighted, however, in the manner suggested by Zubulake: the first two factors carrying the most weight, and the remaining five progressively carrying reduced weight. A party’s willingness to share in part of the e-discovery cost burden should not factor into the court’s final decision regarding cost shifting, contrary to Rule 26 in the American system, disallowing parties the opportunity to use e-discovery as economic leverage.
Another potential improvement to the cost shifting model would be to differentiate between what costs within e-discovery would be shifted. Perhaps only the cost of searching ESI should be considered when shifting costs. That way, if there is relevant information found, then the producing party should bear the full burden of paying to extract and review the information for privilege. This puts the burden on the requesting party only to determine exactly which storage media should be searched. If the court determines that the media is worth searching, it is the producing party’s responsibility to fulfill the e-discovery request. However, a strict rule presuming that the producing party will pay e-discovery costs, as in the American system, will not best serve the discovery process in the future. As new technology continues to be adopted by businesses, the costs of e-discovery will continue to rise. With this rise in costs, a requesting party can effectively bully a producing party into settling a case rather than dealing with the high costs of production.
Without any cost shifting standard in place, requesting parties under the American discovery system would be encouraged to create blanket requests and highly costly discovery procedures. This would provide them with a tactical advantage and also help encourage a settlement in their favor. At a minimum, if the producing party does not settle, the requesting party will have an advantage simply due to the volume of information at their disposal. After finding that cost shifting is indeed necessary, an important consideration is when it should be granted. Extensive granting of cost shifting would help reduce the amount of discovery requested and help combat the rising costs of e-discovery. However, liberal cost shifting may reduce the amount of information actually discovered and thus potentially frustrate the truth finding function of the judicial system. Without access to enough information, it will be more difficult for parties to uncover an accurate and complete representation of the facts of a case.
A better policy is an approach that grants cost shifting only in certain circumstances. For example, a presumption against cost shifting is beneficial in instances where an individual party brings a meritorious suit against a larger, wealthier party. By forcing the producing party to pay for production, the individual will be able to obtain relevant information that he or she could not otherwise afford.
Parties should not be discouraged from adopting new technology and using new storage systems. By maintaining the possibility of cost shifting, parties can rest assured that by adopting an expensive new technology, they are not going to be liable for the full cost of production should the need arise in litigation. The opposite would be true with a liberal cost shifting policy. Parties would be encouraged to use outdated storage systems that are expensive to search, relying on cost shifting to discourage the opposing party to request e-discovery from them since the opposing party would have to share the cost of production. Technology can help reduce e-discovery costs as well. With increasingly sophisticated computer search programs, much of the e-discovery process can be completed electronically.
Independent of which e-discovery courts adopt, its interpretation must be dynamic, given the nature of technology. For example, in Zubulake, the court defined what technology is accessible. What is easily accessible today will one day become obsolete, and the law must anticipate this. Additionally, with improvements in technology, what may be inaccessible or prohibitively burdensome to access today may become accessible in the future. These are additional considerations when developing a comprehensive cost shifting model.
[i]Umar R. Bakhsh, J.D. Candidate, 2012, Chicago-Kent College of Law; B.S. 2008, University of Illinois Urbana-Champaign. I would like to thank Professor Chris Seaman (Chicago-Kent College of Law) for his invaluable feedback and assistance with every stage of this Article.
[iii]Stephen D. Whetstone, E-Discovery Document Preservation & Cost-Shifting: A Matter of Dollars and Sense, pdf downloadable from www.stratify.com, 3, (2009) (citing United States Postal Service data).
[ix]See e.g. Linnen v. A.H. Robbins Co., 1999 WL 462015 (Mass. Super. June 16, 1999).
[x]Mia Mazza, In Pursuit of FRCP 1: Creative Approaches to Cutting and Shifting the Costs of Discovery of Electronically Stored Information, 13 Rich. J. L. & Tech. 11, 1-3 (2007).
[xiii]Vlad Vainberg, When Should Discovery Come With a Bill? Assessing Cost Shifting for Electronic Discovery, 158 U. Pa. L. Rev. 1523, 1525 (2010).
[xiv]Id at 5-6.
[xviii]Mia Mazza, In Pursuit of FRCP 1, 13 Rich. J. L. & Tech. 11, 97-98 (2007).
[xix]Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003).
[xx]Id at 97.
[xxi]217 F.R.D. 309 (S.D.N.Y. 2003) (referring to Rowe Ent., Inc. v. William Morris Agency, Inc, 205 F.R.D. 421 (S.D.N.Y. 2002)).
[xxii]Id at 320-321.
[xxiv]Id at 318-319.
[xxv]Fed. R. Civ. P. 34(b).
[xxvi]Fed. R. Civ. P. 26(b)(2).
[xxvii]Committee Note to Rule 26(b)(2006).
[xxviii]Committee Note to Rule 26, Subsection (b)(2)(2006)
[xxix]Tennis, Cost-Shifting in Electronic Discovery, 119 Yale L.J. at 1119-1120.
[xxx]William Maguire, Current Developments in Federal Civil E-discovery Practice, 795 PLI/Lit 435, 460 (2009).
[xxxi]Tennis, Cost Shifting in Electronic Discovery, 119 Yale L.J. at 1120.
[xxxii]Id (referring to Committee Note, Rule 26).
[xxxiv]Tennis, Cost Shifting in Electronic Discovery, 119 Yale L.J. at 1120.
[xxxvi]Id at 218.
[xxxvii]Werner Pfennigstorf, The European Experience with Attorney Fee Shifting,Law and Contemporary Problems, Duke University School of Law,Vol. 47, No. 1, 37-124 (1984). Accessible at http://www.jstor.org/stable/1191436
[xxxviii]Garrett, Conducting E-discovery in Europe: Practice Pointers for Corporate Counsel, 783 PLI/Lit at 283-284.
[xl]E.U. Privacy Directive (1998) (available athttp://ec.europa.eu/justice/policies/privacy).
[xli]Vlad Vainberg, When Should Discovery Come With a Bill? Assessing Cost Shifting for Electronic Discovery, 158 U. Pa. L. Rev. 1523, 1574 (2010).Umar Bakhsh, © 2011