Error to Apply Zubulake Factors to Discovery Dispute Involving Paper Documents

From Tierno v. Rite Aid Corp., 2008 U.S. Dist. LEXIS 58748 (N.D. Cal. July 31, 2008):

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").

Held, magistrate judge “clearly erred by analyzing the dispute under Zubulake.”

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