Wells Fargo has since filed a Motion for Payment Pursuant to this Court's November 25, 2015 Order [Doc. 819]. Wells Fargo seeks reimbursement for 50 percent of the costs incurred in producing 407 loans that were originated after January 1, 2013. (Id. at 4.) That amount totals in the amount of $30,816.00. The Court GRANTS Wells Fargo's Motion [Doc. 819] for the following reasons.

Under Fed. R. Civ. P. 26(c)(1), the Court is authorized to issue protective orders that “specify[ ] terms, including time and place or the allocation of expenses, for the disclosure or discovery.” This does not mean that cost-sharing should be remotely common. The Supreme Court has instructed that the “presumption is that the responding party must bear the expense of complying with discovery requests.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358, (1978). And the comments to the 2015 amendments to Rule 26 note this “does not imply that cost-shifting should become a common practice. Courts and parties should continue to assume that a responding party ordinarily bears the costs of responding.” Fed. R. Civ. P. 26(c)(1) advisory committee's notes to 2015 amendment.[1]Nevertheless, cost sharing may occasionally be warranted when, inter alia, discovery presents an “undue burden or expense” relative to the prospective benefit of the discovery. See Fed. R. Civ. P. 26(b)(1); Fed. R. Civ. P. 26(c)(1).

What Rule 26 does not define is just what counts as an “expense” that may be shared. See Fed. R. Civ. P. 26(c)(1)(B). The rule is silent as to whether costs related to a discovery vendor's review of documents may be shared. This silence is the genesis of the parties' dispute over Wells Fargo's Motion.

Relators argue that Wells Fargo's Motion “violates” the Court's November 25, 2015 Order because Wells Fargo wrongfully attempts to include in its requested costs “amounts [Wells Fargo] allegedly paid to various outside vendors and” discovery counsel for their role in reviewing the documents prior to production. Relators cite Zubulake v. UBS Warburg LLC for the proposition that a responding party should “always bear the cost of reviewing and producing electronic data once it has been converted to accessible form.” 216 F.R.D. 280, 290 (S.D.N.Y. 2003). Relators argue that they should only pay costs exclusive of attorney-related expenses for reviewing and producing the responsive loan documents.

*2 The Court acknowledges that there are differences of opinion as to whether costs related to attorney privilege or responsiveness reviews are an appropriate target for sharing. Shevlin v. Phoenix Life Ins. Co., No. CIV.A. 09-6323 MLC, 2012 WL 1981793, at *2 (D.N.J. June 1, 2012) (“courts are split on the issue” of “whether the [c]ourt may shift the cost of attorney review of ESI from the producing party to the party seeking production”); F.D.I.C. v. Brudnicki, 291 F.R.D. 669, 676 (N.D. Fla. 2013) (“the [c]ourt in Zubulake was focusing upon the issue of cost shifting when dealing with inaccessible ESI ... [but] other courts have held that Rule 26(c) permits cost shifting as part of enforcing proportionality limits.”)

Several courts have ordered parties to share expenses related to attorney privilege or responsiveness reviews. See, e.g., In re Aspartame Antitrust Litig., 817 F.Supp.2d 608, 615 (E.D. Pa. 2011) (“[b]ecause a privilege screen is simply a keyword search for potentially privileged documents, we award that cost as well”); W. Ben. Sols., LLC v. Gustin, No. 1:11-CV-00099-EJL, 2012 WL 4417190, at *5 (D. Idaho Sept. 24, 2012) (“[t]herefore, the Court finds that the data storage costs of $1,994.75, IT department time of 77.5 hours for a cost of $3,487.50, and attorney time limited to time actually spent reviewing the 1,056 emails ... are costs of production and within the Court's discretion to award under either the state or federal rules.”); see also Adair v. EQT Prod. Co., No. 1:10CV00037, 2012 WL 1965880, at *4 (W.D. Va. May 31, 2012), objections overruled, No. 1:10CV00037, 2012 WL 2526982 (W.D. Va. June 29, 2012) (“I hold that the court may consider the cost of review of ESI for privileged or responsive information in deciding whether discovery imposes an undue burden or cost on a responding party. Furthermore, if the court were inclined to limit discovery based on the burden or cost of the review, I hold that the court could shift the costs of that review, either in whole or in part, to the requesting party.”)

The Court agrees with the above authorities that, under limited circumstances, a party may seek to share reasonable costs related to reviewing documents prior to their production. The Court has already found that cost-sharing should be imposed here under the special circumstances of this case, and explained its reasons in its November 25, 2015 Order. The Court also notes that the discovery in this case covers a time period spanning more than a decade, and that the costs imposed by this Order are a small fraction of the total costs incurred by Wells Fargo in discovery in connection with this most recent production request. Finally, the Court also has no concerns that shifting the cost burden here will deter Relators or others from seeking to vindicate their rights.

Nevertheless, the Court recently requested that Wells Fargo provide the hourly rates charged by its vendors, and identify whether it charged for privilege review. Wells Fargo has since informed the Court that over 99 percent of the review conducted by McGuire Woods was done by a staff attorney who billed $260.00 per hour, and that McGuire Woods “did not include any of its privilege review costs in their affidavit.” Huron Consulting Group charged between $37 and $70 per hour for its efforts to ensure that only the documents actually requested by Relators were produced, and charged $0.80 per document for its broader loan file review. Huron “estimates that less than 5% of the time spent on overall document review and production was dedicated to privilege analysis.” (Doc. 879 at 2.) Wells Fargo has therefore shown that almost the entirety of its requested costs were incurred in attempting to respond to Relators' discovery requests, and not incurred as a result of a self-interested privilege review.

*3 Additionally, the Court ordered limited discovery cost-sharing in November of 2015 knowing that Wells Fargo estimated in an earlier Motion to Share Costs (Doc. 552) that it would incur significant expenses[2] in producing more recent loan files from 2013 and thereafter. (Doc. 552-1 at 9.) Wells Fargo attached an affidavit to that first motion from a McGuire Woods discovery attorney, Jill Crawley Griset, which plainly indicated that Wells Fargo intended to seek significant expenses related to Wells Fargo's use of discovery vendors. And the Motion indicated that Wells Fargo would not seek to share the expense of trial counsel's time, but would seek to share the expense of the “significant electronic discovery and document production costs that Wells Fargo will incur from an outside vendor.” (Doc. 552 at 2.) That is exactly what Wells Fargo has done. The Court's November 25, 2015 Order approving cost-sharing was therefore decided against a backdrop that plainly indicated that the Court considered vendor fees to be a valid target for cost-sharing under the specific facts of this case.

For the foregoing reasons, Wells Fargo's Motion is GRANTED [Doc. 819]. Relators are directed to remit $30,816.00 to Wells Fargo within fourteen (14) days of this Order.

IT IS SO ORDERED this 26th day of May, 2016.

Although the Court's November 25, 2015 Order was entered prior to the effective date of the 2015 amendments, the committee's notes indicate that the amendment to Rule 26(c)(1) merely made more explicit the authority already implicitly recognized by the rules.

Wells Fargo estimated at the time of the first motion to share costs that the expense of producing roughly 4,550 loan files and reviewing 162,344 pages of documents would be $399,722. (June 10, 2015 Decl. of Jill Crawley Griset, Doc. 552-2 at 7.) Ultimately, Wells Fargo produced 5,308 loan files, reviewed 492,080 pages, and incurred total discovery costs related to this production of $815,154.50.