Cost
1. Does the shifting environment of discovery from ink-on-paper to digital media advantage or disadvantage plaintiffs?
2. Assume that the discovery request is framed in the broadest terms to include all forms of electronic data in all forms of media relevant to the plaintiff's claims. Suppose the defendant responds with a motion to limit the scope of discovery to active data. The defendant supports the motion with affidavits showing that more than 90% of the material responsive to the discovery request is likely to be in active data, which can be searched at relatively low cost, while only 10% of responsive material is likely to be in the inactive data, which will be exceedingly expensive to search. On the basis of this showing, the defendant asks that plaintiffs pay the costs of searching inactive data if it is to be searched at all. What is your response? What outcome would you predict? Why?
3. Suppose the defendant shows that there is tremendous overlap among backup tapes, and specifically, that looking at quarterly backups will retrieve 90% of the data on all the back-ups. Defendant proposes that at most it should be required to pay the costs of a quarterly review; if plaintiff wants more, plaintiff should pay. What response? What outcome would you predict? Why?