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Sent to you by pakurilecz via Google Reader: Magistrate Judge "Clearly
Erred" by Analyzing Cost-Shifting Dispute for Paper Production under
Seven-Factor Zubulake Test via Electronic Discovery Law by
[log in to unmask] (K&L Gates) on 8/14/08
Tierno v. Rite Aid Corp., 2008 WL 3287035 (N.D. Cal. July 31, 2008)

In this wage and hour employment case, plaintiff sought documents about
class members' employment and salary history, terminations, performance
evaluations, discipline, certain communications, and personnel files.
Rite Aid had demanded that plaintiff either travel to its various
district office locations throughout California and copy the documents,
or pay the copying expenses, which it estimated at $104,178.84. The
dispute was presented to the magistrate judge. After weighing the
factors set out in Zubulake v. UBS Warburg, L.L.C., 217 F.R.D. 309, 322
(S.D.N.Y. 2003), the magistrate judge required Rite Aid to produce the
documents at its own expense.

Rite Aid objected to the magistrate's ruling, arguing that Fed. R. Civ.
Pro. 34 requires plaintiff, not Rite Aid, to bear the costs of
photocopying. The district judge agreed, concluding that the magistrate
judge had “clearly erred” by analyzing the dispute under Zubulake:
Rite Aid correctly argues that the seven-factor Zubulake test which
Judge Larson applied is intended solely for electronic discovery, not
for discovery of paper documents. The Zubulake opinion sought to refine
a set of factors which had been set out in an earlier case, which
had "become the gold standard for courts resolving electronic discovery
disputes." 217 F.R.D. at 320. The seven-factor framework developed in
Zubulake clearly applies solely to electronic discovery. See, e.g.,
Semsroth v. City of Wichita, 239 F.R.D. 630, 636 (D. Kan. 2006)
(Zubulake is the leading case on "cost-shifting of electronic
discovery"); Quinby v. WestLB AG, 245 F.R.D. 94, 101 (S.D.N.Y. 2006)
(Zubulake sets forth "an analytical framework for determining whether
it is appropriate to shift the costs of electronic discovery");
Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568, 572 (N.D. Ill.
2004) (Zubulake is one of three tests "[i]n the electronic arena" to
determine when shifting costs of production in response
to "e-discovery" requests is appropriate); OpenTV v. Liberate
Technologies, 219 F.R.D. 474, 476 (N.D. Cal. 2003) ("[i]n the context
of discovery of electronic documents" Zubulake standard applies).
The rule for paper documents, on the other hand, is that "[a] party
producing documents will ordinarily not be put to the expense of making
copies for the requesting party." 7 Moore's Federal Practice § 34.13[5]
at 34-92 (2008); Schwarzer et al, Federal Civil Procedure Before Trial
§ 11:1932, citing Continental Ill. National Bank and Trust Co. of
Chicago v. Caton, 136 F.R.D. 682, 690 (D. Kan. 1991) and Bills v.
Kennecott Corp. 108 F.R.D. 459, 462 (D. Utah 1985) ("Ordinarily, the
producing party bears the costs of reviewing and gathering documents
while the requesting party pays for the costs of the copies only");
Clever View Investments, Ltd. v. Oshatz, 233 F.R.D. 393, 394 (S.D.N.Y.
2006) ("[A] party need only make requested documents available for
inspection and copying; it need not pay copying costs").

However, the district judge noted that other grounds may exist for
shifting the costs of copying to Rite Aid. It concluded that plaintiff
should be granted the opportunity to argue that Rite Aid should pay for
copying or otherwise bear or share the cost of the paper production.

A copy of the decision is available here.

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