Almost all documents start on a computer, and discovery for litigation necessarily requires access to electronically stored information (ESI). The rules related to ESI in discovery (whether opponents can access it and who pays) are rapidly evolving and differ from state to state. The Federal Rules of Civil Procedure are used as a touchstone and precedent by courts and states to help define their own rules. This series will look at some of the major cases, opinions, and results that have informed this evolution.
Rowe Entertainment v. William Morris Agency – 2002 –
The backstory:
Leonard Rowe, of Rowe Entertainment, was a promoter with some 30 years of experience. He was president of the Black Promoters Association (BPA). The acts he promoted were primarily black musical artists. At the time, the William Morris Agency had a near monopoly on the type of musical acts Rowe represented and wanted to represent. However, he found it noteworthy that he and his fellow black promoters were never able to represent a white artist. He suspected that they would not be allowed to do so during the 114-year history of the William Morris Agency.
He and his fellow BPA promoters were required to pay a 50% deposit for many artists. He discovered/claimed that white promoters had different requirements; for example, white promoters were only required to pay 10% deposits or even less. Furthermore, he discovered that white promoters could represent white and non-white artists. He called foul and, along with several other plaintiffs, sued the William Morris Agency (along with 30 other defendants) for anticompetitive racial discrimination.
Among Rowe’s discovery demands was the production of a wide range of emails (“sweeps”), which the court found not to be as focused on the subject matter of the case. The judge let the production go ahead, but transferred the entire cost of production to Rowe. The judge used eight factors to decide so. These factors became a national touchstone for several years on how to weigh the cost and liability of ESI production (especially emails), and whether to allow such production to proceed.
This set of eight factors became known as the “Rowe Test”. The factors, each of which was considered more or less of equal importance, were:
1. The specificity of discovery requests
2. The probability of discovering critical information
3. The availability of information from other sources
4. Purposes for which the respondent keeps the requested data
5. Benefits related to the parties
6.Total cost of production
7. Relative ability and incentive to control costs
8. Resources available to each party.
Only number 3 was found in Rowe’s favour, as the information was not available from other sources. The remaining seven factors were found in favor of William Morris, leading the judge to allow discovery to proceed, but that Rowe would have to pay the full cost. The cost amounted to around $200,000.00.
What do the eight factors really mean?
1: The specificity of discovery requests refers to how specific the requests are. If the requests are narrowly targeted at the type of critical electronic documents and emails only from key players and that are more likely to be a relevant issue, then the court should favor the party producing them paying. If the requesting parties’ claims are too broad, asking for everything that is (and is not) in sight rather than what is likely to be relevant, then the court should favor the producing party, leaving the requesting party to bear the lion’s share. of the cost of production.
In Rowe’s case, the judge found Rowe’s demands “overwhelming” and determined that this factor favored the applicant (Rowe) bearing the cost of production.
2: The probability of discovering critical information. If there is strong evidence that the data sought is almost certainly relevant to the case, or better, if the producing party admits that the requested electronic data is relevant, the court should favor the producing party paying. On the other hand, if the requests appear to be more or less a fishing expedition, the court will seek to make the requesting party pay.
In Rowe’s case, the court wrote: “However, it certainly has not been shown that emails could be a gold mine. No witness has proven, for example, any email communication that allegedly reflects discriminatory or corporate practices.” anticompetitive.” Based on this factor, the court again favored William Morris.
3: The availability of information from other sources. Are alternative sources of discovery available, for example, in print (paper), or as individual files on computers where staff have already searched for response data? If not, the court should find this factor in favor of the applicant, making it more likely that the producer will be told to bear the cost of production.
This was the only factor found in Rowe’s favor, as there was little to no evidence that the demanded emails could be found or produced, except by searching backup tapes and hard drives.
4: Purposes for which the responder maintains the requested data references the reason the data exists. Is it saved for disaster recovery or data recovery purposes only? Does it exist simply because someone forgot to discard it, and can the producing party prove this to be true? The requester is then more likely to bear the cost of searching for this data.
Is it kept for ongoing business purposes, which might include regular access to backup tapes or hard drives? Then the court should find it more likely that the producing party will pay for the production.
The court found that William Morris inadvertently saved much of the requested data or kept it for archival purposes only.
5: Benefits relative to the parties: in most cases, the production will favor the applicant; otherwise, why would they ask for the data? This was also true of Rowe and therefore this factor would again favor Rowe having to pay discovery costs.
6: Full Cost of Production – If the cost is not substantial, or if the discovery is more like traditional discovery, the court is less likely to change the costs and leave a presumption that the defendant bears the costs. However, at the time of the Rowe case, email discovery was more the exception than the rule and therefore the court concluded that this factor would favor William Morris, i.e. that this factor should make Rowe more likely to bear the burden of the cost of production.
7: Relative ability and incentive to control costs. In general, the applicant determines the scope of their requests, which would make the court favor the applicant to pay. Such was the case with Rowe.
8: Resources available for each part. This factor is only taken into account when there is a large disparity between the sizes of the two parties, such as in the case of an individual taking on a corporation, where the smaller of the parties may not have the ability to pay for the production. in all. In a case like Rowe’s, where the parties are both companies, the factor is unlikely to come into play, it is a neutral factor.
Rowe was one of the formative cases in what has become the Civil Rules regarding electronically stored information (ESI). The 8-factor test was particularly important in informing future cases about what ESI should be allowed in discovery and who pays to produce it.
The case itself has had several episodes, and court opinions as recently as 2012 have sparked popular interest in what many see as court decisions based on racism, while others see outcomes based primarily on following (or not following) rules. techniques.
Next in this series, another important case that led to the current Federal Rules of Civil Procedure, Zubulake v. UBS Warburg