Plaintiff Requesting Electronic Discovery Required To Pay Part Of The Cost

As reported in an earlier post, the Southern District of New York recently developed an approach to determining who should pay the costs for restoring otherwise unavailable electronic documents. Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. May 13, 2003). Since then, defendant restored a sampling of e-mail backup tapes, and based on that sample plaintiff demanded that defendant pay the cost of full production. In Zubulake, 216 F.R.D. 280 (July 24, 2003), the court applied its new approach and concluded that plaintiff must pay 25% of the cost of restoration; however, once data is restored the “usual rules of discovery apply” -- defendant must pay the costs of production, such as attorneys’ review for privilege. The court suggested that defendant potentially could shift those costs by making a Rule 68 offer of judgment.