When can a party shift e-discovery costs to the requesting party, and what is the Zubulake seven-factor test?

In U.S. civil litigation, the default rule is that each party bears the cost of producing its own electronically stored information (ESI). The party responding to a discovery request normally pays to search, retrieve, review, and produce responsive material. Cost-shifting — making the requesting party pay some or all of those costs — is the exception, not the rule, and it generally arises only when production would be especially burdensome or expensive.

When Cost-Shifting May Apply

Courts are most willing to consider shifting costs when the requested data is not reasonably accessible, for example information stored on backup tapes, in legacy systems, or in formats that require costly restoration or conversion. Under the federal framework, a responding party can identify sources it considers not reasonably accessible because of undue burden or cost; the requesting party may still seek that data, and the court can order production subject to conditions, including allocating some expense to the requester.

Cost-shifting is rarely appropriate for active, readily searchable data. It also does not relieve a party of its duty to preserve relevant information once litigation is reasonably anticipated.

The Zubulake Seven-Factor Test

The influential Zubulake line of decisions set out factors courts weigh when deciding whether to shift e-discovery costs. They are commonly summarized as:

1. How specifically the request is tailored to discover relevant information.
2. The availability of the information from other sources.
3. The total cost of production compared to the amount in controversy.
4. The total cost of production compared to the resources of each party.
5. The relative ability of each party to control costs, and its incentive to do so.
6. The importance of the issues at stake in the litigation.
7. The relative benefits to the parties of obtaining the information.

The first two factors are typically given the most weight. Courts apply these factors only after the data is shown to be relatively inaccessible.

Practical Notes

These principles govern federal civil cases. State courts and other countries may follow different rules, so always confirm the applicable jurisdiction. Strong records management and information governance reduce disputes by keeping data accessible and disposing of it under defensible schedules.

For related concepts, see e-discovery.