Wiginton v. CB Richard Ellis, Inc. 229 F.R.D. 568 (N.D. Ill. 2004)

The Parties Plaintiffs: Wiginton A large collection of employees at CBRE that are alleging a nationwide pattern of the hostile work environment prevalent at all the offices of CBRE Defendant: CB Richard Ellis, Inc. Per their website they call themselves the “global leader in real estate services” They are an enormously large corporation with offices around the world

Facts P filed a class action claim for a nationwide practice of sexual harassment In this case they were seeking discovery of pornographic material that they claim was distributed electronically and displayed on computers in offices During discovery, D produced 94 monthly backup tapes from 11 offices Kroll Ontrack was hired to restore and extract the emails After an initial analysis of the selection of tapes, Kroll produced a review set of 17,375 documents and a revision of the estimate to review the documents increased to $249,000 Each side manipulated the numbers of responsive documents to serve their respective position, HOWEVER they ended up effectively agreeing that there were 567 responsive documents from the 8,660 total documents to equal a 6.5% responsive rate

Affected Rules FRCP 26(b)(2)(iii) FRCP 26(c) This rule allows for the court to limit discovery if it is determined that the burden of discovery outweighs its likely benefit FRCP 26(c) This responding parties from unduly burdensome or expensive discovery requests

Analysis Application of the Eight Factors (Zubulake +1) Likelihood of Discovery Critical Information 8 term search resulted in 8,660 hits, and P have identified 567 documents being responsive (6.5% response rate) The Availability of Such Information from Other Sources Relevant info on the backup tapes only available through restoring and searching the tapes However since there was a large number of unresponsive documents this weighs in favor of cost shifting The Amount in Controversy, as Compared to the Total Cost of Production Even though the award could be very high (whether as a CA or not) the fact that it will cost several hundred thousand dollars for one limited part of discovery is substantial and weighs in factor of cost shifting The Parties’ Resources, as Compared to the Total Cost of Production Plaintiffs at a serious resource disadvantage to a company that had net revenues of 1.6 billion dollars in 2003 The Relative Ability of each Party to Control Costs and its Incentive to do so B/c of P’s claim their discovery request must be broad thus there is not much of an incentive to keep costs low

Analysis Application of Eight Factors (cont.) The Importance of Issues at Stake in the Litigation This factor rarely comes into play and in citing Zubulake “discrimination in the workplace is hardly unique” The Importance of the Required Discovery in Resolving the Issues at Stake in the Litigation (The +1 to Zubulake) Parties disagree on relevance on pornographic material that may have been circulating through the offices Court held that when relevance is in doubt, the court should err on the side of permissive discovery However, the court believed there was other evidence to support the plaintiff’s claim thus this factor weighs slightly in favor of cost shifting The Relative Benefits to the Parties in Obtaining the Information Least important factor because the requested information is always more likely to benefit the requesting party

Issues Regarding eDiscovery At what point should the percentage response rate favor cost shifting? Is 6.5% low enough, especially in a case of nationwide harassment in several offices? Was the sampling method fair? Is allowing the plaintiff to only pick 4 sampling keywords enough? Was Plaintiff prejudiced? Regarding the added factor, is it appropriate at early stage of discovery to give the court power to judge the importance of the requested discovery?

Conclusions Even with the presumption that the responding party pays for discovery costs, the factors favor cost-shifting Found that CBRE should bear 25% and Wiginton 75% of the discovery costs of restoring tapes, searching the data, and transferring it to an electronic data viewer Each party will also bear their own costs of reviewing the data and printing documents, where necessary

Two Questions Do you think it was fair that the court put a limit on the number of search terms that could be used searching the documents? Is 4 enough, especially so early in discovery? Do you agree with the added factor used in this case? Does/will it make cost shifting more common?