When Is an E-Discovery Burden an Undue Burden?

Judge Shira Scheindlin of the U.S. District Court for the Southern District of New York has a basic rule for estimating the cost to discover electronic records in any given trial. “A court should always be skeptical at the first dollar amount thrown out by either party,” she says. “I ask the requesting party to explain their estimate, and then consult the producing party or a court-appointed neutral party until a figure can be agreed on. It almost always seems to be a figure right in the middle between what the two parties initially give.”

Six years ago, Judge Scheindlin wrote a series of five separate rulings in Zubulake v. UBS Warburg, discussing in great detail how to best manage or share the burden of discovery for electronic records. Much of that ruling has been codified in the Federal Rules of Civil Procedure and also incorporated into rules for non-federal jurisdictions. But the problems associated with the cost of e-discovery continues to dog litigators and judges, despite new case law, updated rules, and technology designed specifically to address the issue.