United States District CourtNorthern 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…

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 information2) The availability of such information from other sources3) The amount in controversy as compared to the total cost

of production4) The parties’ resources as compared to the total cost of

production5) The relative ability of each party to control costs and its

incentive to do so6) The importance of the issues at stake in the litigation7) 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:

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…