In this case, following the court’s decision that all documents were to be produced electronically in TIFF format with Optical Character Recognition (“OCR”), defendant asserted that the cost of processing the documents should be shifted to the plaintiff. In support of its assertion, defendant claimed that the cost of conversion to OCR would likely exceed $200,000 and that “it does not itself seek to use the OCR process, and any extra expense would be incurred on it behalf solely for Plaintiff’s convenience.” Defendant offered no evidence in support of its estimate, however, and the court’s own research indicated the estimated cost appeared to be “somewhat inflated.” Nor did defendant deny that the OCR process would make the documents easier to examine, thus reducing costs for attorney time.
In making its determination, the court indicated its intent to rely on the multi-factor test adopted in Zubulake v. USB Warburg, LLC, despite its “slightly different context.” 217 F.R.D. 309 (S.D.N.Y. 2003). Those factors were:
- (1) the extent to which the request was specifically tailored to discover relevant information; (2) the availability of such information from other sources; (3) the total cost of production, when compared to the amount in controversy; (4) the total cost of production, when compared to the resources available to each party; (5) the relative ability of each party to control costs and the incentive to do so; (6) the importance of the issues at stake in the litigation; and (7) the relative benefits to the parties of obtaining the information.
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Source: ediscoverylaw.com
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