Home › Case briefs › Civil Procedure

Quinby v. WestLB AG

United States District Court for the Southern District of New York · Civil Procedure

Civil ProcedureElectronic DiscoveryCost ShiftingPreservation of EvidenceRule 26electronic discoverybackup tapesinaccessible data

Facts

Plaintiff sought e-mails from numerous current and former WestLB employees using broad search terms, and after discovery conferences the court narrowed the requests to targeted searches of seventeen employees. For six former employees, WestLB had deleted their e-mails from its accessible database when they left and maintained them only on backup tapes, which required costly restoration by an outside vendor. Defendant sought to shift the restoration and search costs for those six former employees' e-mails to plaintiff. The court found that, except for one former employee, Barron, defendant should reasonably have anticipated that those employees' e-mails would be discoverable when it converted them to inaccessible form.

Issue

When a party stores relevant e-mails only on backup tapes and seeks to shift the costs of restoring and searching them, may the party obtain cost-shifting if it converted the data to an inaccessible format after it should have anticipated litigation? If cost-shifting is available, how should the Zubulake factors apply here?

Rule

Cost-shifting for electronic discovery may be considered only when production from inaccessible data imposes an undue burden or expense on the responding party. But if a party creates that burden by converting data into an inaccessible format at a time when it should reasonably have foreseen that the material would be discoverable in anticipated litigation, it should not be entitled to shift the costs of restoring and searching that data. Where cost-shifting remains available, the court applies the seven Zubulake factors, weighted in descending order of importance, with the marginal utility factors carrying the greatest weight.

🔒

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a retaliation suit filed in federal court in Chicago, Lakeshore Advisory Group asks for emails from a former manager whose mailbox was deleted from active servers and retained only on compressed backup tapes. Prairie Harbor Capital shows that restoration requires a vendor, several days of processing, and substantial expense.

Which is the best threshold ruling on Prairie Harbor Capital's request to shift restoration costs to the plaintiff?

Explanation. The majority opinion makes cost-shifting a threshold possibility only when electronic discovery from inaccessible sources imposes an undue burden or expense. Backup tapes are an inaccessible format, so the court may consider cost-shifting, but it is not automatic. The presumption remains that the responding party bears discovery costs unless good cause is shown.