No. Civ.A. 4:02–CV–702–Y
United States District Court, N.D. Texas, Fort Worth Division
July 12, 2004
Kathleen M. LaValle, Daniel R. McCabe, Scott A. Wheatley, Jackson Walker, Dallas, TX, for Plaintiff.
Bryant C. Boren, Brenda T. Rhoades, Christopher A. Roach, Baker Botts, Matthew P. Sallusti, US Department of Labor, Office of the Solicitor, Dallas, TX, for Defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF ORDER ISSUED JUNE 8, 2004
*1 United States District Judge Terry R. Means previously referred Defendant Verizon Southwest's (Verizon) Motion for Protective Order to the United States Magistrate Judge for determination. The motion was granted in an order issued June 8, 2004 requiring that each party pay one-half of the expense incurred by Verizon in answering Interrogatories 1 and 2 of Plaintiff's Third Set of Interrogatories and assessing the expense as taxable court costs. Judge Means has referred this matter to the undersigned for factual findings and legal conclusions supporting the issuance of the protective order.
The parties are engaged in a protracted discovery battle over Interrogatories 1 and 2 in Plaintiff Multitechnology Service's (MTS) Third Set of Interrogatories. Interrogatories 1 and 2 seek information about Verizon's past and present customers, and that information is apparently in electronic form available in Verizon's computer databases or archives. Verizon objected to answering the interrogatories on grounds of undue burden and initially estimated the expense of responding to Interrogatories 1 and 2 to be approximately $100,000. Verizon has reduced that estimate to approximately $60,000 in an affidavit accompanying its motion for protective order.
Complaints of undue burden and expense are properly addressed by motion for protective order under Federal Rule of Civil Procedure 26(c), including an order conditioning discovery on the requesting party's payment of the costs of discovery. FED. R. CIV. P. 26(c). See also
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978). MTS asserts that cost-shifting is not appropriate under a seven-factor test that originates in Zubulake v. UBS Warburg LLC,
an opinion from the district court for the Southern District of New York. Relevant factors include: (1) the extent to which the request is specifically tailored to discover relevant information; (2) the availability of such 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 available to 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; and (7) the relative benefits to the parties of obtaining the information.
MTS has urged as an initial matter that its request targets only “accessible data” that would never warrant cost-shifting according to the Zubulake
opinion. Alternatively, MTS asserts that application of the Zubulake
test also weighs against shifting any expense to MTS. Zubulake
is a district court opinion without binding authority, and the production of the information sought by the requesting party in Zubulake
is not readily comparable to the evaluation of the information that Verizon must complete to fully answer MTS' interrogatories.
In addition, nothing in Zubulake
purports to interfere with the court's authority to enter any appropriate protective order in the discovery process pursuant to Rule 26(c), regardless of whether the information sought is available on paper or electronically. Moreover, the circumstances—even viewed under Zubulake'
s framework—favor granting a protective order to address Verizon's objections of undue burden and expense in answering MTS' discovery requests.
*2 The information MTS seeks is relevant and discoverable as already determined. It also appears that this information, which essentially requires Verizon to verify its past and/or present customers, is the particular property of Verizon and not readily available from other sources.
Both of these factors weigh against cost-shifting. Several additional factors question the cost versus benefit, and who is most able to bear the expense. According to Verizon, MTS seeks damages approximating $1.6 million dollars, while the requested discovery will require an expenditure of $60,000. But the party most able to control costs would be Verizon, which possesses the data. This also cuts against cost-shifting to encourage Verizon to keep costs down. However, cost-shifting becomes more just in light of the relative benefit to the parties. MTS asserts that gathering the requested information will aid Verizon's defense, but Verizon has specifically stated that it would not be gathering the information responsive to MTS' interrogatories absent court order and derives no benefit from that task. The court finds that requiring the parties to evenly shoulder the expense is the most effective resolution because it balances the benefit of the discovery for MTS and provides Verizon with incentive to manage the costs it incurs in answering MTS' interrogatories. The court further finds it appropriate to classify the expense as court costs that can be recovered by the prevailing party upon conclusion of this action. See generally
FED. R. CIV. P. 54(d); Cf.
Harrington v. Texaco, Inc., 339 F.2d 814, 822 (5th Cir.1964).
217 F.R.D. 309 (S.D.N.Y.2003)
Zubulake, 217 F.R.D. at 322.
considered data to be accessible or inaccessible (and thus subject to a cost-shifting analysis) according to the media on which it was stored. Id.
invovled a discover dispute over a Rule 34 request for production of, among other documents, e-mails and other electronic data compilations concerning the plaintiff. See id.
at 312–13. See generally
FED. R. CIV. P. 34.
There is some indication from MTS that it merely wants Verizon to verify information contained in MTS' own records, but MTS also argues that it needs Verizon's records because of Verizon's contemptible behavior in trespassing on MTS premises and connecting customers to MTS services without MTS' knowledge.
End of Document.