Cost Shifting

Part I

Many counsel face the harsh realities and costliness of the "electronic" age. In the "early" days of electronic discovery (ca. 1999) the costs to provide electronic evidence was borne by the producing party. Courts reasoned that the cost of restoring electronic data, when served with a discovery request, is "one of the risks taken on by companies which have made the decision to avail themselves of computer technology." Linnen v. A.H. Robbins 1999 WL 462015

Courts now recognize that, left unchecked, electronic discovery can, in some cases, obstruct justice by creating unfair advantages and burdens. Case law provides the standards by which the courts allocate electronic discovery costs between the parties.

Read Rowe Entertainment Inc. V. William Morris Agency, 205 F.R.D. 421 (S.D.N.Y. 2002)

Read Zubulake v. UBS Warburg, LLC, 217 F.R.D.309 (Zubulake V)

Does Zubulake reject the Rowe factors or refine them? Explain in one paragraph the differences before reading the next section.

Read COST SHIFTING (http://CaliforniaDiscovery.findlaw.com/index.htm)

Have you changed your answer whether Zubulake rejects the Rowe factors or refines them? Explain.

Read the White Paper E-mail Discovery in Civil Litigation: Worst Case Scenarios vs. Best Practices

Once again, have you changed your answer whether Zubulake rejects the Rowe factors or refines them? Explain.

E-mail your final answer to jlcarrol@samford.edu using the subject = factors
Due Friday, October 21, 2005.

Part II

Review FRCP 26(b)(2)(iii)

Read "What is source code" to better understand the fact pattern in BoreMeTV vs. InterActionTV.

View the slides in The Digital Dialogue for background on the intense competition in the digital listening and viewing marketplace. The BoreMeTV vs. InterActionTV problem that follows below involves designing and marketing software bridging that "digital divide".

Read Observations on "The Sedona Principles" by Carroll & Withers. Particularly note the discussion focusing on Principle #2.

Review the Statement of Facts for BoreMeTV vs. InterActionTV

Read In re Ford Motor Co., 110 F.3d 954 (3rd Cir. 1997)

To Do: You are on a panel (see below) of the United States Court of Appeals for the Third Circuit to whom mandamus petitions and other requests for orders are assigned. InterActionTV has filed a writ of mandamus for cost sharing and protective orders. You must confer with your panelists about the facts and issues. Each panelist will decide whether to issue the writ and protective orders. Write an individual opinion stating your reasons based on the Zubulake factors.

• Your opinion is limited to 3 pages.
• Use MS Word format, double spaced, 12 pt. font.
• Attach to e-mail to jlcarrol@samford.edu with subject line = panel (and number) e.g. panel 2 .
• Submit your opinion no later than midnight Sunday, October 23, 2005.

Court Panel 1
Court Panel 2
Court Panel 3
Court Panel 4