216 F.R.D. 280 | S.D.N.Y. | 2003
OPINION AND ORDER
On May 13, 2003, I ordered defendants UBS Warburg LLC, UBS Warburg, and UBS AG (collectively “UBS”) to restore and produce certain e-mails from a small group of backup tapes. Having reviewed the results of this sample restoration, Laura Zubulake now moves for an order compelling UBS to produce all remaining backup e-mails at its expense. UBS argues that based on the sampling, the costs should be shifted to Zu-bulake.
For the reasons fully explained below, Zu-bulake must share in the costs of restoration, although UBS must bear the bulk of that expense. In addition, UBS must pay for any costs incurred in reviewing the restored documents for privilege.
I. BACKGROUND
The background of this lawsuit and the instant discovery dispute are recounted in two prior opinions, familiarity with which is presumed.
In order to obtain a factual basis to support the cost-shifting analysis, I ordered UBS to restore and produce e-mails from five of the ninety-four backup tapes that UBS had then identified as containing responsive documents; Zubulake was permitted to select the five tapes to be restored.
According to the declaration, Zubulake selected the backup tapes corresponding to Matthew Chapin’s e-mails from May, June, July, August, and September 2001.
Pinkerton was able to restore each of the backup tapes, yielding a total of 8,344 emails.
Pinkerton then performed a search for emails containing (in either the e-mail’s text or its header information, such as the “subject” line) the terms “Laura”, “Zubulake”, or “LZ”.
Pinkerton billed UBS 31.5 hours for its restoration services at an hourly rate of $245, six hours for the development, refinement and execution of a search script at $245 an hour,
UBS now asks that the cost of any further production — estimated to be $273,649.39, based on the cost incurred in restoring five tapes and producing responsive documents from those tapes — be shifted to Zubulake. The total figure includes $165,954.67 to restore and search the tapes and $107,694.72 in attorney and paralegal review costs. These costs will be addressed separately below.
II. LEGAL STANDARD
The Federal Rules of Civil Procedure specify that “any matter, not privileged, that is relevant to the claim or defense of any party” is discoverable,
(i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.27
Although “the presumption is that the responding party must bear the expense of complying with discovery requests,” requests that run afoul of the Rule 26(b)(2) proportionality test may subject the requesting party to protective orders under Rule 26(c), “including orders conditioning discovery on the requesting party’s payment of the costs of discovery.”
A. Cost-shifting Generally
In Zubulake I, I considered plaintiffs request for information contained only on backup tapes and determined that cost-shifting might be appropriate.
In order to determine whether cost-shifting is appropriate for the discovery of inaccessible data, “the following factors should be considered, weighted more-or-less in the following order”:
1. The extent to which the request is specifically tailored to discover relevant information;
2. The availability of such information from other sources;
3. The total cost of production, compared to the amount in controversy;
4. The total cost of production, compared to the resources available to each party;
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; and
7. The relative benefits to the parties of obtaining the information.32
In establishing this test, I modified the list of factors articulated in Rowe Entertainment, Inc. v. William Morris Agency, Inc.,
B. Application of the Seven Factor Test
1. Factors One and Two
As I explained in Zubulake I, the first two factors together comprise the “marginal utility test” announced in McPeek v. Ashcroft:
The more likely it is that the backup tape contains information that is relevant to a claim or defense, the fairer it is that the [responding party] search at its own expense. The less likely it is, the more unjust it would be to make the [responding party] search at its own expense. The difference is “at the margin.”35
These two factors should be weighted the most heavily in the cost-shifting analysis.
The document request at issue asks for “[a]ll documents concerning any communication by or between UBS employees concerning Plaintiff,”
At oral argument, Zubulake presented the court with sixty-eight e-mails (of the 600 she received) that she claims are “highly relevant to the issues in this case” and thus require, in her view, that UBS bear the cost of production.
A number of the e-mails complain of Zubu-lake’s behavior. Zubulake was described by Clarke as engaging in “bitch sessions about the horrible men on the [Desk],” and as a “conduit for a steady stream of distortions, accusations and good ole fashioned back stabbing,”
In particular, six e-mails singled out by Zubulake as particularly “striking”
• An e-mail from Hardisty, Chapin’s supervisor, chastising Chapin for saying one thing and doing another with respect to Zubulake. Hardisty said, “As I see it, you do not appear to be upholding your end of the bargain to work with her.” This e-mail stands in contrast to UBS’s response to Zubulake’s EEOC charges, which says that “Mr. Chapin was receptive to Mr. Hardisty’s suggestions [for improving his relationship with Zubu-lake].”46
• An e-mail from Chapin to one of his employees on the Desk, Joy Kim, suggesting to her how to phrase a complaint against Zubulake. A few hours later, Joy Kim did in fact send an e-mail to Chapin complaining about Zubulake, using precisely the same words that Chapin had suggested.' But at his deposition (taken before these e-mails were re-
snatches of LZ’s conversation in which she is complaining and being critical of how I handled the Chinese Corporation conf. everytime she senses I am in ear shot she quickly drops her voice. She has gone back to being dismissive and abrasive in her interactions w/ me. Good to see LZ is back to her old tricks [sic].”).*286 stored), Chapin claimed that he did not solicit the complaint.47
• An e-mail from Chapin to the human resources employee handling Zubulake’s case listing the employees on the Desk and categorizing them as senior, mid-level, or junior salespeople. In its EEOC filing, however, UBS claimed in response to Zubulake’s argument that she was the only senior salesperson on the desk, that it “does not categorize salespeople as ‘junior’ or ‘senior.’ ” In addition, UBS claimed in its EEOC papers that there were four female salespeople on the Desk, but this e-mail shows only two.48
• An e-mail from Chapin to Hardisty acknowledging that Zubulake’s “ability to do a good job ... is clear,” and that she is “quite capable.”49
• An e-mail from Derek Hillan, presumably a UBS employee, to Chapin and Zubulake using vulgar language, although UBS claims that it does not tolerate such language.50
• An e-mail from Michael Oertli, presumably a UBS employee, to Chapin explaining that UBS’s poor performance in Singapore was attributable to the fact that it only “covered” eight or nine of twenty-two accounts, and not to Zubu-lake’s poor performance, as UBS has argued.51
Not surprisingly, UBS argued that these emails have very little, if any, relevance to the issues in the ease.
While all of these e-mails are likely to have some “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence,”
b. The Availability of Such Information from Other Sources
The other half of the marginal utility test is the availability of the relevant data from other sources. Neither party seemed to know how many of the 600 e-mails produced in response to the May 13 Order had been previously produced. UBS argues that “nearly all of the restored e-mails that relate to plaintiffs allegations in this matter or to the merits of her ease were already produced.”
It is axiomatic that a requesting party may obtain “any matter, not privileged, that is relevant to the claim or defense of any party.”
If this were not enough, there is some evidence that Chapin was concealing and deleting especially relevant e-mails. When Zubulake first filed her EEOC charge in August 2001, all UBS employees were instructed to save documents relevant to her case.
In sum, hundreds of the e-mails produced from the five backup tapes were not previously produced, and so were only available from the tapes. The contents of these emails are also new. Although some of the substance is available from other sources ie.g., evidence of the sour relationship between Chapin and Zubulake), a good deal of it is only found on the backup tapes {e.g., inconsistencies with UBS’s EEOC filing and Chapin’s deposition testimony). Moreover, an e-mail contains the precise words used by the author. Because of that, it is a particularly powerful form of proof at trial when offered as an admission of a party opponent.
c. Weighing Factors One and Two
The sample restoration, which resulted in the production of relevant e-mail, has demonstrated that Zubulake’s discovery request was narrowly tailored to discover relevant information. And while the subject matter of some of those e-mails was addressed in other documents, these particular e-mails are only available from the backup tapes. Thus, direct evidence of discrimination may only be available through restoration. As a result, the marginal utility of this additional discovery may be quite high.
While restoration may be the only means for obtaining direct evidence of discrimination, the existence of that evidence is still speculative. The best that can be said is that Zubulake has demonstrated that the marginal utility is potentially high. All-in-all, because UBS bears the burden of proving that cost-shifting is warranted, the marginal utility test tips slightly against cost-shifting.
2. Factors Three, Four and Five
“The second group of factors addresses cost issues: ‘How expensive will this production be?’ and, ‘Who can handle that expense?’ ”
a. The Total Cost of Production Compared to the Amount in Controversy
UBS spent $11,524.63, or $2,304.93 per tape, to restore the five back-up tapes. Thus, the total cost of restoring the remaining seventy-two tapes extrapolates to $165,954.67.
In order to assess the amount in controversy, I posed the following question to the parties: Assuming that a jury returns a verdict in favor of plaintiff, what economic dam
Obviously, this is a significant disparity. At this early stage, I cannot assess the accuracy of either estimate. Plaintiff had every incentive to high-ball the figure and UBS had every incentive to low-ball it. It is clear, however, that this case has the potential for a multi-million dollar recovery. Whatever else might be said, this is not a nuisance value case, a small case or a frivolous case. Most people do not earn $650,000 a year. If Zubu-lake prevails, her damages award undoubtedly will be higher than that of the vast majority of Title VII plaintiffs.
In an ordinary case, a responding party should not be required to pay for the restoration of inaccessible data if the cost of that restoration is significantly disproportionate to the value of the case. Assuming this to be a multi-million dollar case, the cost of restoration is surely not “significantly disproportionate” to the projected value of this case. This factor weighs against cost-shifting.
b. The Total Cost of Production Compared to the Resources Available to Each Party
There is no question that UBS has exponentially more resources available to it than Zubulake.
c. The Relative Ability of Each Party to Control Costs and Its Incentive to Do So
Restoration of backup tapes must generally be done by an outside vendor.
As noted in Zubulake I, this factor “will only rarely come into play.”
4. Factor Seven: The Relative Benefits to the Parties of Obtaining the Information
Although Zubulake argues that there are potential benefits to UBS in undertaking the restoration of these backup tapes — in particular, the opportunity to obtain evidence that may be useful at summary judgment or trial — there can be no question that Zubulake stands to gain far more than does UBS, as will typically be the ease.
5. Summary and Conclusion
Factors one through four tip against cost-shifting (although factor two only slightly so). Factors five and six are neutral, and factor seven favors cost-shifting. As noted in my earlier opinion in this case, however, a list of factors is not merely a matter of counting and adding; it is only a guide.
The next question is how much of the cost should be shifted. It is beyond cavil that the precise allocation is a matter of judgment and fairness rather than a mathematical consequence of the seven factors discussed above. Nonetheless, the analysis of those factors does inform the exercise of discretion. Because the seven factor test requires that UBS pay the lion’s share, the percentage assigned to Zubulake must be less than fifty percent. A share that is too costly may chill the rights of litigants to pursue meritorious claims.
C. Other Costs
The final question is whether this result should apply to the entire cost of the production, or only to the cost of restoring the backup tapes. The difference is not academic — the estimated cost of restoring and searching the remaining backup tapes is $165,954.67, while the estimated cost of pro
As a general rule, where cost-shifting is appropriate, only the costs of restoration and searching should be shifted. Restoration, of course, is the act of making inaccessible material accessible. That “special purpose” or “extraordinary step” should be the subject of cost-shifting.
First, the producing party has the exclusive ability to control the cost of reviewing the documents. In this case, UBS decided— as is its right — to have a senior associate at a top New York City law firm conduct the privilege review at a cost of $410 per hour. But the job could just as easily have been done (while perhaps not as well) by a first-year associate or contract attorney at a far lower rate. UBS could similarly have obtained paralegal assistance for far less than $170 per hour.
Moreover, the producing party unilaterally decides on the review protocol. When reviewing electronic data, that review may range from reading every word of every document to conducting a series of targeted key word searches. Indeed, many parties to document-intensive litigation enter into so-called “claw-back” agreements that allow the parties to forego privilege review altogether in favor of an agreement to return inadvertently produced privileged documents.
Documents stored on backup tapes can be likened to paper records locked inside a sophisticated safe to which no one has the key or combination. The cost of accessing those documents may be onerous, and in some cases the parties should split the cost of breaking into the safe. But once the safe is opened, the production of the documents found inside is the sole responsibility of the responding party. The point is simple: technology may increasingly permit litigants to reconstruct lost or inaccessible information,
IV. CONCLUSION
For the reasons set forth above, the costs of restoring any backup tapes are allocated between UBS and Zubulake seventy-five percent and twenty-five percent, respectively. All other costs are to be borne exclusively by UBS. Notwithstanding this ruling, UBS can potentially impose a shift of all of its costs, attorney’s fees included, by making an offer to the plaintiff under Rule 68.
. See Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309, 2003 WL 21087884 (S.D.N.Y.2003) ("Zubu-lake I") (addressing the production of backup tapes); Zubulake v. UBS Warburg, LLC, No. 02 Civ. 1243, 2003 WL 21087136 (S.D.N.Y. May 13, 2003) ("Zubulake II”) (addressing Zubulake's reporting obligations).
. See 6/20/03 Letter from James A. Batson, Zubu-lake's counsel, to the Court.
. See Zubulake I, 217 F.R.D. at 324, 2003 WL 21087884, at *13.
. See 6/17/03 Oral Argument Transcript ("Tr.") at 3 (Statement of Kevin B. Leblang, UBS’s counsel). But see 5/15/03 Letter from Christina J. Kang, Zubulake’s counsel, to Norman C. Simon (indicating a total of sixty-eight potentially responsive backup tapes), Ex. B to 6/16/03 Declaration of Norman C. Simon ("Simon Deck”), UBS’s counsel.
. Zubulake I, 217 F.R.D. at 324, 2003 WL 21087884, at *13.
. See Simon Decl
. See id. ¶ 7.
. See id.
. See id. ¶ 8.
. See id. ¶ 11.
. See id. ¶ 14(a).
. See id. ¶ 9.
. See id. ¶ 12.
. See id. ¶ 14(a).
. See id. H13; see also 7/21/03 Letter from Christina J. Kang to the Court (transmitting UBS’s privilege log, which reflects that approximately 4% (25 of 625) of the responsive documents were withheld on the basis of privilege).
. See Simon Deck U 29.
. See 7/18/03 Letter from Norman C. Simon to the Court (“7/18/03 Ltr.”)
. See 7/18/03 Ltr.; see also Pinkerton Invoice Summary ("Pinkerton Invoice”), Ex. E to Simon Deck
. See Pinkerton Invoice.
. See 7/18/03 Ltr.
. See Simon Decl. H 17; see also Time Records for Norman C. Simon, Jennifer Brevaire, and Sandra Wong ("Time Records”), Ex. F to Simon Deck
. See Simon Deck ¶ 18; see also Time Records.
. See Simon Deck ¶ 19; see also Time Records.
. See Fed.R.Civ.P. 34(a) (permitting the requesting party to "inspect and copy” any documents it asks for); see also In re Bristol-Myers Squibb Sec. Litig., 205 F.R.D. 437, 440 (D.N.J.2002) (imposing cost of photocopying electronic documents on requesting party).
. See Simon Deck V 20.
. Fed.R.Civ.P. 26(b)(1).
. Fed.R.Civ.P. 26(b)(2).
. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978).
. Fed.R.Civ.P. 26(c).
. But see Tex.R. Civ. P. 196.4 ("To obtain discovery of data or information that exists in electronic or magnetic form, the requesting party must specifically request production of electronic or magnetic data and specify the form in which the requesting party wants it produced. The responding party must produce the electronic or magnetic data that is responsive to the request and is reasonably available to the responding party in its ordinary course of business. If the responding party cannot' — through reasonable efforts — retrieve the data or information requested or produce it in the form requested, the responding party must state an objection complying with these rules. If the court orders the responding party to comply with the request, the court must also order that the requesting party pay the reasonable expenses of any extraordinary steps required to retrieve and produce the information.”); see also American Bar Association Civil Discovery Standards (1998) (Standard 29: "Unless the requesting party can demonstrate a substantial need for it, a party does not ordinarily have a duty to take steps to tty to restore electronic information that has been deleted or discarded in the regular course of business but may
. See Zubulake I, 217 F.R.D. at 323, 2003 WL 21087884, at *12 (“A court should consider cost-shifting only when electronic data is relatively inaccessible, such as in backup tapes.”) (emphasis in original).
. Id. at 324, 2003 WL 21087884 at *13.
. 205 F.R.D. 421, 429 (S.D.N.Y.), aff'd, 2002 WL 975713 (S.D.N.Y. May 9, 2002).
. Adam I. Cohen & David J. Lender, Electronic Discovery: Law and Practice § 5.04(c) (Aspen Law & Business, publication forthcoming 2003) (“For example, in many instances, at least four factors — the purposes of retention, benefit to the parties, total costs and ability to control costs— will favor the responding party. If courts simply conduct an absolute comparison of the eight Rowe factors, the responding party will need to attain just one more factor to shift the costs to the requesting party. This is a dramatic shift from earlier cases, which were more inclined to follow the presumption in traditional document production, requiring the responding party to pay.”).
. 202 F.R.D. 31, 34 (D.D.C.2001)
. See Zubulake I, 211 F.R.D. at 322, 2003 WL 21087884, at *11.
. Plaintiff’s First Request for Production of Documents H 28, Ex. E to the 3/21/03 Declaration of Kevin B. Leblang ("Leblang Dec.”).
. See Zubulake I, 217 F.R.D. at 312, 2003 WL 21087884, at *2.
. See Tr. at 5 (Statement of James A. Batson).
. 7/6/01 e-mail, Bates No. UBSZ 001181.
. 7/16/01 e-mail, Bates No. UBSZ 001131. See also 7/24/01 e-mail, Bates No. UBSZ 001792 (Michael Balbirnie complaining that Zubulake went to Asia hut failed to visit Singapore or Kuala Lampur); 9/21/01 e-mail, Bates No. UBSZ 001399 (Chapin recounting Peggy Yeh’s complaint that Zubulake was "mis-representing her views”); 5/3/01 e-mail, Bates No. UBSZ 001090 (Chapin recounting complaints about Zubulake from Datta and Clarke).
. See, e.g., 9/21/01 e-mail, Bates No. UBSZ 001399 ("In the past few days I have caught
. See 4/23/01 e-mail, Bates No. UBSZ 001063 (Hardisty stating, "[Y]ou are smart, i don’t believe you made a mistake. What am i supposed to say to [Zubulake] when she tells me that you are telling me one thing and her another and that you want her off the desk.? As i see it, you do not appear to be upholding your end of the bargain to work with her [sic].”).
. See Tr. at 6-18.
. Tr. at 15 (Statement of James A. Batson).
. See 4/23/01 e-mail, Bates No. UBSZ 001063; Tr. at 6-7.
. See 9/25/01 e-mail, Bates No. UBSZ 001663; 9/25/01 e-mail, Bates No. UBSZ 001664; Tr. at 8-11.
. See 5/16/01 e-mail, Bates No. UBSZ 000974; Tr. at 11-12.
. See 6/28/01 e-mail, Bates No. UBSZ 001210; Tr. at 12-13.
. See 3/5/01 e-mail, Bates No. UBSZ 001553; Tr. at 13.
. See 7/27/01 e-mail, Bates No. UBSZ 001114; Tr. at 13-14.
. See Tr. at 20-27 (Statement of Kevin B. Le-blang).
. Fed.R.Evid. 401. See also Advisory Committee Note to Fed.R.Civ.P. 26(b)(1).
. Simon Decl. H 14(b).
. Id. H 14(c) (emphasis in original).
. Fed.R.Civ.P. 26(b)(1).
. See Zubulake I, 217 F.R.D. at 312, 2003 WL 21087884, at *2.
. See Tr. at 4 (Statement of James A. Batson); id. at 18 (Statement of Kevin B. Leblang).
. See id. at 10 (Statement of James A. Batson).
. See id.
. See supra note 47 and accompanying text.
. See 9/25/01 e-mail, Bates No. UBSZ 001664.
. See Fed.R.Evid. 801(d)(2).
. See Zubulake I, 217 F.R.D. at 322, 2003 WL 21087884, at *11.
. See also Tr. at 18 (Statement of James A. Batson) (reporting that UBS has "represented [that the total cost of restoration] would be about 175,000 exclusive of attorney time”).
. See 6/20/03 Letter from James A. Batson to the Court.
. See 6/20/03 Letter from Kevin B. Leblang to the Court.
. See Zubulake I, 217 F.R.D. at 321, n. 66, 2003 WL 21087884, at *10, n. 66 (“UBS, for example, reported net profits after tax of 942 million Swiss Francs (approximately $716 million) for the third quarter of 2002 alone.”).
. See, e.g., Laura Zubulake, The Complete Guide to Convertible Securities Worldwide (1991).
. See, e.g., In re San Juan Dupont Plaza Hotel Fire Litig., 111 F.3d 220 (1st Cir.1997) (affirming award of $10.7 million in costs to plaintiffs’ steering committee).
. See, e.g., Cohen & Lender, supra note 34, § 2.09 (recognizing that "third party computer technicians or experts" are often "necessary in retrieving, searching, or analyzing electronic information”), § 5.04(B) (noting that "computer experts can often recover ‘deleted’ flies”).
. See, e.g., McPeek, 202 F.R.D. at 32 (citing restoration costs of $93 per hour).
. See, e.g., Rowe, 205 F.R.D. at 432 ("The [requesting parties] will be able to calibrate their discovery based on the information obtained from initial sampling. They are in the best posi
. See Zubulake I, 217 F.R.D. at 322, 2003 WL 21087884, at *11.
. See id. (“the last factor — (7) the relative benefits of production as between the requesting and producing parties — is the least important because it is fair to presume that the response to a discovery request generally benefits the requesting party. But in the unusual case where production will also provide a tangible or strategic benefit to the responding party, that fact may weigh against shifting costs.”) (emphasis in original).
. See Zubulake I, 217 F.R.D. at 322, 2003 WL 21087884, at *11 (“we do not just add up the factors”) (quoting Noble v. United States, 231 F.3d 352, 359 (7th Cir.2000)).
. See Zubulake I, 217 F.R.D. at 317, 2003 WL 21087884, at *7 (“Courts must remember that cost-shifting may effectively end discovery, especially when private parties are engaged in litigation with large corporations. As large companies increasingly move to entirely paper-free environments, the frequent use of cost-shifting will have the effect of crippling discovery in discrimination and retaliation cases. This will both undermine the 'strong public policy favoring] resolving disputes on their merits,’ and
. See supra note 30.
. See, e.g., Applied Discovery website, at http://www.applieddiscovery.com/better-Way/theADIway.asp (offering "media restoration” service that includes "retrieval of information from backup tapes or legacy systems — from standard email and word processing programs to arcane systems and uncommon file types” and "proven, cost effective strategies for narrowing the set of potentially responsive documents.”); Computer Forensics Inc. website, at http //www. forensics. com/htmI/-eIectronic_re-store.html (“[An] unfettered approach [to restoration] greatly increases the cost of electronic discovery, adding thousands of dollars for processing, as well as the cost of attorney review time. Computer Forensics Inc. helps our clients avoid any unnecessary restoration of data, while ensuring that potentially relevant data, including encrypted, compressed and password-protected files, are addressed.”). See also Rowe, 205 F.R.D. at 425 (describing restoration of backup tapes as potentially requiring "an information systems analyst [to] import all of the agents’ email into a single common format, creating a single database. The entire database could then be reviewed using one search engine.”); McPeek, 202 F.R.D. at 34 (permitting shift of search costs).
. Compare with S.W. ex rel. N.W. v. Board of Educ. of City of New York (Dist.Two), 257 F.Supp.2d 600, 607-08 (S.D.N.Y.2003) (“Paralegals typically are billed at $75 per hour, unless they have significant experience.”); Marisol A. v. Giuliani, 111 F.Supp.2d 381, 388 (S.D.N.Y. 2000) (holding that, in the absence of evidence demonstrating a high level of experience, an hourly rate of $75 per hour is reasonable for paralegal services). Cf. Williams v. New York City Hous. Auth., 975 F.Supp. 317, 323 (S.D.N.Y.1997) (approving an hourly rate of $75 per hour for paralegals in a civil rights action); Wilder v. Bernstein, 975 F.Supp. 276, 282 (S.D.N.Y.1997) (acknowledging that the prevailing rate for paralegals in civil rights cases in 1997 was between $60-75 per hour).
. See The Sedona Conference, The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production (March 2003), available at http://www.thesedonaconference.org/publications _html (Comment 10a: "Because of the large volumes of documents and data typically at issue in cases involving production of electronic data, courts should consider entering orders protecting the parties against any waiver of privileges or protections due to the inadvertent production of documents and data____ Such an order should provide that the inadvertent disclosure of a privileged document does not constitute a waiver of privilege, that the privileged document should be returned (or there will be a certification that it has been deleted), and that any notes or copies will be destroyed or deleted. Ideally,
. See Zubulake I, 217 F.R.D. at 316-20, 2003 WL 21087884, at *6-9.
. See id. at 324, 2003 WL 21087884 at *13.
. See, e.g., Douglas Heingartner, Back Together Again: Scanning Technology Reassembles Shredded Documents Once Thought Gone for Good, N.Y. Times, July 17, 2003, at G1.
. See Fed.R.Civ.P. 68 ("At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued.... If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the malting of the offer.”); see also Lyte v. Sara Lee Corp., 950 F.2d 101, 103 (2d Cir.1991) (holding that Rule 68 "costs” include attorney’s fees, in the Title VII context) (citing Marek v. Chesny, 473 U.S. 1, 9, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985)).
