Wiginton v. CB Richard Ellis, Inc

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Wiginton v. CB Richard Ellis, Inc Powered By Docstoc
					United States District Court
 Northern District of Illinois
  Decided: August 10, 2004
Parties:
 Plaintiffs:
    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.

 Defendants:
   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
The Beginning:
  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
          environment.
         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.
There’s More…
  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
          documents
                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:
 Rule 26(b)(1):
        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.
The Middle:
 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
  ESI
        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
               expense.
             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
          production
     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
Analysis Continued:
 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
                Search scope
         Weighs in favor of cost-shifting
Still Analyzing Factors:
 Remaining 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
The End:
 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.
Questions…
 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
      was fair?
         Consider:
                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.