Magistrate Judge “Clearly Erred” by Analyzing Cost-Shifting Dispute for Paper Production under Seven-Factor Zubulake Test

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.

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