A Word to the Wise

Discovery of electronic communications. Employees generally cannot live without it (if they hope to state a claim), but often cannot afford to pay for it. Employers can generally afford to pay for it, but resent paying to help a plaintiff make his or her case against them. This dilemma is only further exacerbated by the proliferation of electronic communications that has made the discovery of such information very time-consuming and expensive. As Magistrate Judge James C. Francis IV stated in Rowe Entertainment Inc. v. William Morris Agency, Inc., 205 F.R.D. 421, 423 (S.D.N.Y. 2002), modern-day discovery 'is not just about uncovering the truth, but also about how much of the truth the parties can afford to disinter.'

Under the Federal Rules of Civil Procedure, the producing party generally bears the cost of complying with discovery requests. A district court, in appropriate circumstances, may shift the cost of production under Rule 26(c) to the requesting party where the production imposes an undue burden or expense on the responding party. Courts have applied a variety of tests in seeking to balance the equities relating to the cost of production. Indeed, such a balancing act is mandated by Rule 26(b)(2), which limits discovery where 'the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.'