You sue your employer for gender discrimination, alleging that your male counterparts were given better jobs and more raises than you. You think you can prove it, too, so your lawyer fires off a set of standard demands for production of documents asking for evidence of the supposed scheme utilized by your employer.
And you're hep, too. You remember to ask the company to produce emails between the managers. You even suggest certain search terms to utilize to find these documents from backup tapes the company has in storage. In fact, you're so hep that you fashion searches broader than endorsed on one of the series of seminal e-discovery cases, Zubulake v. UBS Warburg LLC.
But there's just one problem.
There's little if any resulting evidence, and the company spent over a quarter million dollars to find out relatively nothing was there.
Well, with the money spent, I guess there's two problems. That's where the cost-shifting comes in.
In our case, the company applied to the Court to reallocate the costs from it to the Plaintiff in the case Claudia Quinby v. WestLB AG, No. 04 Civ. 7406, S.D. N.Y. She couldn't seem to fashion a good question to get the discovery results she wanted. The Court weighed the seven-factor Zubulake test to determine who should bear the burden of the cost of electronic discovery, and got stuck on the marginal utility factor. The Court reasoned that since the results were something very much less than spectacular, the Plaintiff should bear some of the cost, and shifted some $30,000.00 to her. A small consolation compared to such a big bill, but a consolation prize nonetheless.
Be careful what you wish for.