Court Rulings

In a gender discrimination suit against her former employer, the plaintiff requested that the defendant produce "[a]ll documents concerning any communication by or between UBS employees concerning the plaintiff." The defendant produced 350 pages of documents, including approximately 100 pages of email. The plaintiff knew that additional responsive email existed that the defendant had failed to produce because she, in fact, had produced approximately 450 pages of email correspondence. She requested that the defendants produce the email from archival media. Claiming undue burden and expense, the defendant urged the court to shift the cost of production to the plaintiff, citing the Rowe decision. Stating that a court should consider cost-shifting only when electronic data is relatively inaccessible (such as in this case), the court considered the Rowe 8-factor cost shifting test.

The court noted that the application of the Rowe factors may result in disproportionate cost shifting away from large defendants, and the court modified the test to 7 factors: (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 issue at stake in the litigation and; (7) the relative benefits to the parties of obtaining the information.