The growing popularity of e-discovery as an effective litigation tool has substantially added to the cost of litigation. Responding to discovery requests to produce electronically stored documents and e-mails in a usable format can result in significant costs to the producing party associated with formatting, reviewing, sorting, and producing these records. Consequently, the issue of which party should appropriately bear the costs of e-discovery has grown in importance.

While some courts treat the costs of e-discovery similarly to those of paper-based discovery, other courts have struggled to strike a balance based on each party’s needs and resources, the projected costs of the e-discovery, the reasons for the costs involved, the technical difficulties presented by a request, the potential value of the plaintiff’s claim, and other factors. By employing multi-factor tests to determine which party should bear the cost of discovery, courts seek to prevent parties from paying for their opponent’s “fishing expeditions” while ensuring that the valuable tool of e-discovery is not welded based only a party’s ability or inability to pay. Furthermore, by evaluating the costs of e-discovery in comparison with the potential value of a party’s claim courts seek to prevent one party from unduly burdening the other with expansive and expensive e-discovery requests in cases where the potential for ultimate recovery is limited.

In this section we present recent case law in which courts confront the issue of cost-shifting and discuss the methods employed to determine which party should properly pay.

Background • Discovery Orders • Local Rules

Title	Entity	Description	Publish Date	Doc Type
Zubulake v. UBS Warburg LLC, et al (I)	So. District of New York	Cost-Shifting Order re electronic data	5/13/2003	PDF
Rowe v. William Morris	So. District of New York	Order regarding costs associated with electronic record discovery	1/16/2002	DOC
Zubulake v. UBS Warburg LLC, et al (III)	So. District of New York	Follow-up ruling; extending court's analysis of cost-shifting	7/24/2003	PDF
Zubulake v. UBS Warburg LLC, et al (IV)	So. District of New York	Fourth ruling; cost-shifting and a failure to preserve documents	10/22/2003	PDF
In re Bristol-Myers Squibb Securities Litigation	New Jersey District Court	Copy costs not assessed since producing party failed to disclose that documents were available in electronic form	2/4/2002	PDF
Zubulake v. UBS Warburg LLC, et al (V)	So. District of New York	Fifth ruling; cost-shifting and a failure to preserve documents	7/20/2004	PDF