United States District Court
Northern District of Illinois
Decided: August 10, 2004
Amy Wiginton, Kristine Moran, Norma Plank Fethler,
Andrea Corey and Olivia Knapp (individually and on
behalf of all persons similarly situated)
Female employees of CBRE offices nationwide filing a class
action against employer.
CB Richard Ellis, Inc.
A real estate services company with offices worldwide.
March 3, 2010: Named Premier Commercial Real Estate Brand
for 9th Year in a row
Plaintiffs filed class action alleging a nationwide pattern and
practice of sexual harassment at CBRE offices.
Seeking discovery of pornographic material distributed via email
and displayed on office computers as evidence of a hostile work
Retained Kroll Ontrack to restore and extract the user emails from
the tapes, perform keyword searches and load the results onto the
ElectronicData Viewer (EDV).
CBRE produced 94 monthly backup tapes from 11 offices
It was not a complete collection of every email, but Kroll was to
process 1 monthly tape from each of 3 offices .
Processing Set = 200,000+ documents
Searched text and metadata using 92 pornographic term and 6
disciplinary term search list.
Kroll provided a new review set of 17,325 documents.
Estimate cost to process tapes from the 11 offices = $249,000
Court ordered the parties to choose 4 terms each for Kroll to
search within the final review set.
8,660 documents were discovered with the 8 search terms
Using the EDV (not as advanced as the initial processing search
engine) the parties could review about 1/3 or 2,667 of the
Court held remaining documents to be non-responsive
Plaintiffs claim there was a 21.3% responsive rate because 567
documents viewed were pornographic or documents reflecting
CBRE policies and procedures.
CBRE claims there was a responsive rate of only 1.64% because
only 142 documents should be considered responsive out of 8,660.
Rules, Rules, Rules:
Plaintiffs are entitled to relevant information as long as discovery is
reasonably calculated to lead to the discovery of admissible evidence.
Rule 26(b)(2)(iii): The Proportionality Test
The burden or expense of the proposed discovery outweighs its likely
benefit, considering the needs of the case, the amount in controversy,
the parties’ resources, the importance of the issues at stake in the action,
and the importance of discovery in resolving the issues.
Rule 26(c): Protection Order
The general presumption in discovery is that the responding party must
bear the expense of complying with discovery requests.
However, the court may, for good cause, issue an order to protect a party
or person from annoyance, embarrassment, oppression, or undue
burden or expense by shifting the costs to the non-producing party
rather than just disallowing the requested discovery.
3 tests have been suggested to determine when cost-
shifting is appropriate because e-discovery has the
potential to be greatly more expensive due to the volume of
Marginal Utility Approach:
The more likely that critical information will be discovered, the
fairer it is to have the responding party search at its own
Considered the most important factor
8 Factor Test used in Rowe (included the marginal utility test)
Test used in Zubulake I:
Modified Rowe test to account for the general interpretation
that the test favored cost-shifting and ignored the presumption
that the responding party pays for discovery.
The Wiginton Test:
Proportionality Test in Rule 26(b)(2)(iii)
1) The likelihood of discovering critical information
2) The availability of such information from other sources
3) The amount in controversy as compared to the total cost of
4) The parties’ resources as compared to the total cost of production
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
7) The importance of the requested discovery in resolving the issues
at stake in the litigation
8) The relative benefits to the parties of obtaining the information
Analysis of the Factors:
Marginal Utility Factors:
1. Likelihood of discovering critical information:
Relevancy and responsiveness of the resulting documents from the
test run is subject to great debate by the parties
Plaintiffs: pornographic in nature, CBRE policies, or documents
demonstrating a demeaning attitude toward female employees
CBRE: little relevancy found, emails were not offensive to
women who viewed them, CBRE policies and procedures
should not be considered
2. Availability of such information from other sources:
Here the relevant information on CBRE’s backup email tapes is
only available through restoration and searches of the tapes
Policy documents and relevant emails not previously produced were found
to confirm the existence of relevant documents and the probable
destruction of other relevant documents by CBRE
These 2 factors weigh slightly in favor of cost-shifting
The Cost Factors:
3. Amount in controversy compared to total production cost:
Expert estimate: between $183,000 and $249,000 for production costs
5 named plaintiffs could expect potentially high recovery
Weighs in favor of cost-shifting
4. Party resources compared to total production cost:
CBRE is the “global leader in real estate services” with net revenues of
$1.6 billion for 2003
Plaintiffs are former CBRE employees at a serious disadvantage
Weighs against cost-shifting
5. Relative ability to control costs:
Costs driven by:
Selection of the electronic discovery service vendor
Weighs in favor of cost-shifting
Still Analyzing Factors:
6. Importance of issues at stake:
Discrimination not unique to this case
Factor is neutral
7. Importance of requested discovery in resolving issues:
Reason to believe requested discovery would aid in resolving the
issues, but there is other evidence to support claims
Factor weighs slightly in favor of cost-shifting
8. Relative benefits of obtaining the information:
Information more likely to benefit Plaintiffs more than CBRE
Least important factor
Factor is neutral
Court found that the factors favored cost-shifting to
the Plaintiffs while the general presumption is that the
responding party pays for discovery costs
CBRE is to bear 25% of the discovery costs
Plaintiffs are to bear the remaining 75% of discovery costs
Costs cover restoring the tapes, searching the data and
transferring it to an electronic data viewer.
Each party will bear their own costs of reviewing the data
and printing documents where necessary.
1. The parties spent a lot of time characterizing the other
side’s mistakes in front of the court, instead of providing
factual support for their own claims, do you think that that
played a role in the analysis of the cost-shifting factors and
ultimately in the percentages that each of the parties would
be required to pay?
2. Do you think that the 25-75% split in the costs for discovery
The Plaintiffs great financial disadvantage compared to CBRE, and
The reference the court repeatedly made to the probability that
CBRE had already destroyed relevant documents because the
backup tapes were not a complete depiction of the emails at CBRE.