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C. The Zubulake Factors and Proportionality

FDIC–R argues that several of the “Zubulake factors” favor cost-shifting. The plaintiff in that case alleged that she suffered employment discrimination because of her gender, as well as retaliation. In discovery, she sought e-mails that were largely stored on archived backup tapes which were “only accessible through costly and time-consuming data retrieval.” Zubulake III, 216 F.R.D. at 281. The court applied a seven-factor analysis to determine the extent to which the requesting plaintiff, rather than the responding defendant, should bear the cost of production:


1. The extent to which the request is specifically tailored to discover relevant information;
2. The availability of such information from other sources;
3. The total cost of production, compared to the amount in controversy;
4. The total cost of production, compared to the resources available to each party;
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; and
7. The relative benefits to the parties of obtaining the information.
216 F.R.D. at 284. Yet as the D & Os note, the court tailored these factors to allocate the cost of retrieving data that is not readily accessible—“ ‘[t]he responding party should always bear the cost of reviewing and producing electronic data once it has been converted to an accessible form.’ “ (Docket No. 395 at 24) (quoting Zubulake III, 216 F.R.D. at 290–91). In light of the accessibility analysis discussed above, I am persuaded that the Zubulake analysis does not apply per se. Notwithstanding, the court is required, “[o]n motion or on its own,” to:

*6 ... limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
(iii) 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 the discovery in resolving the issues.
R. 26(b)(2)(C). I would therefore focus on the proportionality considerations under this rule. But frankly, the parties' broad claims about their respective discovery proposals are too speculative to merit a ruling at this time. FDIC–R's affidavit describes the nature of the Westernbank data and itemizes some of the bulk costs, but does not shed any light on the effort in this case—particularly with respect to building responsive searches—that will be required to respond to particular requests. Likewise, it extols the policy virtues of its Relativity proposal, though it never articulates how using a contractor that charges $450 per gigabyte will reduce the net burden on FDIC–R. (See Docket No. 406 at 10). For their part, the D & Os point to two decisions where FDIC–R was ordered to provide discovery in a certain way. (Docket No. 395 at 19–22) (discussing Appleton and FDIC v. Klein, No. 1:12–CV–0896–RLV (N.D.Ga. Dec. 13, 2012) (available at Docket No. 395–1)). But the Appleton order came after discovery attempts showed that FDIC–R's response was entirely unworkable. And as FDIC–R notes, the Klein court did not fully explain the considerations persuading it to adopt the defense's ESI protocol; thus, that precedent does not weigh heavily in my consideration here.
In sum, this is less a situation where the scales are evenly balanced, and more one where the court has been given nothing to place on either side. Until the parties take affirmative steps to conduct discovery—perhaps after test runs, for instance—there is no ground for the court to dramatically alter the defaults under the Federal Rules of Civil Procedure. Cf. Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 324 (Zubulake I ) (S.D.N.Y.2003) (declining to issue a cost-shifting order for inaccessible media until a test run was conducted; “by requiring a sample restoration of backup tapes, the entire cost-shifting analysis can be grounded in fact rather than guesswork.”).



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