Almost all documents start on a computer and discovery for litigation necessarily requires access to electronically stored information (ESI). The rules regarding ESI on discovery, whether opponents have access to it and who pays, are rapidly evolving and differ from state to state. Courts and states use the Federal Rules of Civil Procedure as a touchstone and precedent to help define their own rules. This series will analyze some of the main cases, opinions and results that have informed this evolution.
Rowe Entertainment v. William Morris Agency – 2002 –
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 kinds of musical acts that Rowe represented and that he 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 had to pay a 50% deposit for many artists. Found / claimed that white promoters had different requirements; for example, white promoters were only required to pay deposits of 10% or even less. In addition, he found that white promoters could represent both white and non-white artists. He found fault and, along with several other plaintiffs, sued the William Morris Agency (along with 30 other defendants) for anti-competitive racial discrimination.
Among Rowe’s discovery demands was the production of a wide (“wide”) range of emails, which the court found were less than focused on the subject of the case. The judge let production go ahead, but transferred the entire cost of production to Rowe. The judge used eight factors to decide so. These factors became the touchstone nationwide for several years on how to weigh the cost and responsibility of ESI production (especially emails), and whether such production should be allowed to move forward.
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 defendant keeps the requested data
5. Relative benefits for the parties
6. Total cost of production
7. Relative ability and incentive to control costs
8. Resources available for each party.
Only number 3 was found in Rowe’s favor, as the information was not available from other sources. The remaining seven factors were found in William Morris’s favor, leading the judge to allow the 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 which are more likely to be of a relevant topic, then the court should favor the producing party to pay. If the demands of the requesting parties are too broad, asking for everything that is (and is not) in view rather than what is likely to be relevant, then the court should favor the producing party, leaving the requesting party to take the lion’s share. of the cost of production.
In the Rowe case, the judge found that Rowe’s claims were “radical” and found that this factor favored the applicant (Rowe) to bear the cost of production.
2: The probability of discovering critical information. If there is strong evidence that the data sought is of almost certain relevance to the case, or rather, if the producing party admits that the electronic data requested is relevant, the court should favor the producing party to pay. On the other hand, if the requests look more or less like a fishing expedition, the court will seek to make the requesting party pay.
In Rowe’s case, the court wrote: “However, it has certainly not been shown that emails are likely a gold mine. No witnesses have testified, for example, about email communications allegedly reflecting discrimination or anti-competitive practices. “. 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 that staff have already searched for response data? If not, the court must 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 requested emails could be found or produced, except by searching for them on backup tapes and hard drives.
4: Purposes for which the defendant maintains the references of the requested data and the reason why the data exists. Is it saved for disaster recovery or data recovery purposes only? Does it exist simply because someone just forgot to rule it out and the producing party can prove this to be true? So the cost of searching for this data should be borne by the applicant.
Is it maintained for ongoing business purposes, which may include accessing backup tapes or hard drives on a regular basis? The court should then consider it more likely that the producing party will pay for the production.
The court found that William Morris either inadvertently kept much of the requested data or had it for archival purposes only.
5: Relative benefits to the parties: In most cases, the production will favor the applicant – if not, why would they request the data? This was also true of Rowe’s case and therefore this factor would again favor Rowe having to pay discovery costs.
6: Total cost of production: If the cost is not substantial, or if the discovery is more like the traditional discovery, the court is less likely to change the costs and leave the presumption that the defendant must bear the costs. However, at the time of the Rowe case, email discovery was more of the exception than the rule, and thus the short found that this factor would favor William Morris, that is, this factor should make Rowe a more likely to bear the burden of production cost.
7: Relative ability and incentive to control costs. Generally, the applicant determines the scope of their applications, 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, as in the case where an individual is faced with a corporation, where the smallest of the parties may not have the ability to pay 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 Civil Rules regarding Electronically Stored Information (ESI). The 8-factor test was particularly important in informing future cases of what ESI should be allowed in discovery and who pays to produce it.
The case itself has had several episodes and court opinions as recent as 2012 have sparked popular interest in what many see as court decisions based on racism, where others see results based primarily on following (or not following) technical rules.
Next in this series, another important case leading to the current Federal Rules of Civil Procedure, Zubulake v. UBS Warburg