Cost Shifting in E-Discovery: A Comparative Analysis Between America and Europe

Umar Bakhsh, Illinois Institute of Technology

Abstract

E-discovery is quickly becoming a prominent consideration when dealing with traditional discovery requests. The costs of producing e-discovery, however, have grown exponentially due to the voluminous and fragmented nature of electronically stored information. The current standard used by courts, in UBS v. Zubulake, has mistakenly and non-uniformly been applied by courts in spite of Congress’ attempt to create its own standard via FRCP Rule 26. In comparison, Europe’s “loser of litigation pays all court costs” has not adequately met the particular problem created by e-discovery. My article proposes a more manageable alternative standard to Zubulake, FRCP 26, and the European model of dealing with e-discovery. Specifically, by calculating a percentage of likelihood that material information will be uncovered during a sample e-discovery procedure, courts can then weigh the FRCP factors in the manner suggested in Zubulake. With a weighted system and forced sampling, courts can determine if one party is intentionally driving up discovery costs as a tactic to increase a potential settlement award. Additionally, courts can shift costs either way depending on the information uncovered during the sample data run.