Joe McCartin, Managing Editor
E-Discovery costs can be quite prohibitive. The problem was detailed by David Degnan in Volume 12, Issue 1 of the Minnesota Journal of Law, Science, and Technology. In his article, Accounting for the Costs of Electronic Discovery, Degnan discussed the use of four methods for controlling costs – sampling, gap testing, crawl systems, and cooperation. Recently, FDIC litigation against former directors of failed banks has created a new trend in E-Discovery cost containment – the quick peek and clawback. However, this new cost control mechanism may not control cost at all. It merely shifts a significant amount of cost onto the requesting party, upending traditional discovery procedures.
In FDIC v. Hayden, et al. and FDIC v. Copenhaver, et al. the court required the requesting party of Electronically Stored Information (ESI) to submit search terms to the FDIC, which would then produce all documents relevant to those terms in a Relativity database. The requesting party would then have access to all hosted documents, but would be responsible for conducting initial document review itself. After the requesting party conducted a “quick peek” and selected relevant documents, the FDIC would then have the opportunity to “clawback” any privileged documents. The FDIC would not have to review any documents not selected by the requesting party.
It is entirely appropriate for courts to shift the costs to a requesting party at times. Zubulake v. UBS Warburg, LLC. detailed a number of factors that could warrant cost shifting from the producing to the requesting party, and in FDIC v Hayden, et al. the court engaged in extensive analysis of the Zubulake factors. However, courts need to bear in mind that review is not just a portion of the production cost, it is the overwhelming bulk of the cost, and should not be shifted between parties without compelling reasons. Degnan showed in his article that the primary costs associated with E-discovery comes from review, which accounts for roughly 58% of the cost of e-discovery. Even in the presence of a number of compelling Zubulake factors, courts should make an attempt to split, not just shift, the cost of review.
While some requesting parties have found the arrangement to their liking, courts have also foisted this on others. Notably, this practice doesn’t reduce the overall amount of review, it merely shifts the costs of initial review from the producing to the requesting party. Requesting parties need to be aware of the potential costs they will bear under this arrangement. If they want to avoid the imposition of quick peek and clawback by courts, they should seek to follow the guidance of Degnan and the Sedona Conference and cooperate extensively with the opposing party in crafting a discovery process that is acceptable. Failure to work on a discovery plan cooperatively, leaves the requesting party more vulnerable to having a plan foisted upon them, one that may shift the bulk of costs onto them.