United States District Court Northern District of Illinois Decided: August 10, 2004

Parties: Plaintiffs: Amy Wiginton, Kristine Moran, Norma Plank Fethler, Andrea Corey and Olivia Knapp (individually and on behalf of all persons similarly situated) Female employees of CBRE offices nationwide filing a class action against employer. Defendants: CB Richard Ellis, Inc. A real estate services company with offices worldwide. March 3, 2010: Named Premier Commercial Real Estate Brand for 9 th Year in a row

The Beginning: Plaintiffs filed class action alleging a nationwide pattern and practice of sexual harassment at CBRE offices. Seeking discovery of pornographic material distributed via and displayed on office computers as evidence of a hostile work environment. Retained Kroll Ontrack to restore and extract the user s from the tapes, perform keyword searches and load the results onto the ElectronicData Viewer (EDV). CBRE produced 94 monthly backup tapes from 11 offices It was not a complete collection of every , but Kroll was to process 1 monthly tape from each of 3 offices. Processing Set = 200,000+ documents Searched text and metadata using 92 pornographic term and 6 disciplinary term search list.

There’s More… Kroll provided a new review set of 17,325 documents. Estimate cost to process tapes from the 11 offices = $249,000 Court ordered the parties to choose 4 terms each for Kroll to search within the final review set. 8,660 documents were discovered with the 8 search terms Using the EDV (not as advanced as the initial processing search engine) the parties could review about 1/3 or 2,667 of the documents Court held remaining documents to be non-responsive Plaintiffs claim there was a 21.3% responsive rate because 567 documents viewed were pornographic or documents reflecting CBRE policies and procedures. CBRE claims there was a responsive rate of only 1.64% because only 142 documents should be considered responsive out of 8,660.

Rules, Rules, Rules: Rule 26(b)(1): Plaintiffs are entitled to relevant information as long as discovery is reasonably calculated to lead to the discovery of admissible evidence. Rule 26(b)(2)(iii): The Proportionality Test The burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of discovery in resolving the issues. Rule 26(c): Protection Order The general presumption in discovery is that the responding party must bear the expense of complying with discovery requests. However, the court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense by shifting the costs to the non-producing party rather than just disallowing the requested discovery.

The Middle: 3 tests have been suggested to determine when cost- shifting is appropriate because e-discovery has the potential to be greatly more expensive due to the volume of ESI Marginal Utility Approach: The more likely that critical information will be discovered, the fairer it is to have the responding party search at its own expense. Considered the most important factor 8 Factor Test used in Rowe (included the marginal utility test) Test used in Zubulake I: Modified Rowe test to account for the general interpretation that the test favored cost-shifting and ignored the presumption that the responding party pays for discovery.

The Wiginton Test: Proportionality Test in Rule 26(b)(2)(iii) 1) The likelihood of discovering critical information 2) The availability of such information from other sources 3) The amount in controversy as compared to the total cost of production 4) The parties’ resources as compared to the total cost of production 5) The relative ability of each party to control costs and its incentive to do so 6) The importance of the issues at stake in the litigation 7) The importance of the requested discovery in resolving the issues at stake in the litigation 8) The relative benefits to the parties of obtaining the information

Analysis of the Factors: Marginal Utility Factors: 1. Likelihood of discovering critical information: Relevancy and responsiveness of the resulting documents from the test run is subject to great debate by the parties Plaintiffs: pornographic in nature, CBRE policies, or documents demonstrating a demeaning attitude toward female employees CBRE: little relevancy found, s were not offensive to women who viewed them, CBRE policies and procedures should not be considered 2. Availability of such information from other sources: Here the relevant information on CBRE’s backup tapes is only available through restoration and searches of the tapes Policy documents and relevant s not previously produced were found to confirm the existence of relevant documents and the probable destruction of other relevant documents by CBRE These 2 factors weigh slightly in favor of cost-shifting

Analysis Continued: The Cost Factors: 3. Amount in controversy compared to total production cost: Expert estimate: between $183,000 and $249,000 for production costs 5 named plaintiffs could expect potentially high recovery Weighs in favor of cost-shifting 4. Party resources compared to total production cost: CBRE is the “global leader in real estate services” with net revenues of $1.6 billion for 2003 Plaintiffs are former CBRE employees at a serious disadvantage Weighs against cost-shifting 5. Relative ability to control costs: Costs driven by: Selection of the electronic discovery service vendor Search scope Weighs in favor of cost-shifting

Still Analyzing Factors: Remaining Factors: 6. Importance of issues at stake: Discrimination not unique to this case Factor is neutral 7. Importance of requested discovery in resolving issues: Reason to believe requested discovery would aid in resolving the issues, but there is other evidence to support claims Factor weighs slightly in favor of cost-shifting 8. Relative benefits of obtaining the information: Information more likely to benefit Plaintiffs more than CBRE Least important factor Factor is neutral

The End: Court found that the factors favored cost-shifting to the Plaintiffs while the general presumption is that the responding party pays for discovery costs CBRE is to bear 25% of the discovery costs Plaintiffs are to bear the remaining 75% of discovery costs Costs cover restoring the tapes, searching the data and transferring it to an electronic data viewer. Each party will bear their own costs of reviewing the data and printing documents where necessary.

Questions… 1. The parties spent a lot of time characterizing the other side’s mistakes in front of the court, instead of providing factual support for their own claims, do you think that that played a role in the analysis of the cost-shifting factors and ultimately in the percentages that each of the parties would be required to pay? 2. Do you think that the 25-75% split in the costs for discovery was fair? Consider: The Plaintiffs great financial disadvantage compared to CBRE, and The reference the court repeatedly made to the probability that CBRE had already destroyed relevant documents because the backup tapes were not a complete depiction of the s at CBRE.