motion to compel, " shocking information"

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

THOMAS J. HOLMES, et. al., Plaintiffs v. Case No.: 14-CV-208 JOHN DICKERT, et al., Defendants

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO COMPEL ELECTRONICALLY STORED INFORMATION

Plaintiffs, by and through counsel, hereby move this Court to compel the City of Racine,

John Dickert, Gary E. Becker, Kurt S. Wahlen, James Kaplan, Gregory T. Helding, David L.

Maack, Aron M. Wisneski, Robert E. Mozol, Marl K. Levine and Joseph G. LeGath

(collectively, “Municipal Defendants”), to produce all relevant, responsive, non-duplicative

electronically stored information (“ESI”) located on the City of Racine’s archive tapes. In

support thereof, Plaintiffs state as follows:

I. Overview

Plaintiffs have alleged that the Municipal Defendants, among others, committed civil

rights violations and engaged in a pattern of racketeering in violation of the Civil RICO statute.

Plaintiffs’ claims are set forth in detail in their Amended Complaint (Doc. No. 61). Stated as

simply as possible, Plaintiffs allege that the Municipal Defendants conspired to gain control of

the Racine city government through of a pattern of racketeering activity, which they then used to

unlawfully discriminate against minority-owned establishments with minority clientele.

Case 2:14-cv-00208-JPS Filed 02/17/15 of 17 Document 116

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As part of discovery, Plaintiffs have requested that the Municipal Defendants produce

relevant, responsive, non-duplicative e-mails and other electronically stored information (“ESI”)

generated during the relevant time period. Through the meet-and-confer process, the parties

agreed upon three important issues: (i) the parties agreed to a series of search terms; (ii) the

parties agreed to the custodians whose ESI would be culled and searched; and (iii) the parties

agreed the relevant time period would be January 2006 – present. The Municipal Defendants are

in the process of providing responsive documentation from June 2009 – present. They have

refused, however, to produce any ESI from January 2006 – May 2009.

The relevance of the requested information cannot reasonably be contested. The

Municipal Defendants recently provided Plaintiffs with a list containing the number of hits for

individual search terms found in certain City employees’ emails from June 2009 – present. The

results are staggering; for example:

“nigger” (436 hits) “nig” (238 hits) “negro (1675 hits)

“monkey” (612 hits) “wetback” (31 hits) “n-ville” (14 hits)

“coon” (745 hits) “bribe” (548 hits) “kickback” (54 hits)

“ghetto” (303 hits) “oriental” (484 hits) “those people” (1765 hits)

Further, during one of the very first fact witness depositions to take place in this case, a

non-party witness testified that she heard Mayor Dickert proclaim that: “It is time for these

Niggers to go back to Waukegan.”

The Municipal Defendants refuse to produce the indisputably relevant ESI because they

claim it is located on archive tapes that are not reasonably accessible. According to the

Municipal Defendants, they will only produce relevant ESI from January 2006 – May 2009 if

Plaintiffs agree to pay for it. The Municipal Defendants are ostensibly taking advantage of the


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disparity in resources between the parties and denying Plaintiffs access to clearly relevant

information. Plaintiffs dispute the Municipal Defendants’ characterization of this information as

inaccessible and submit that Plaintiffs’ need for the discovery outweighs the costs of extracting

the ESI on these archive tapes. Plaintiffs therefore move for entry of an Order compelling the

Municipal Defendants to produce the requested ESI.

II. Background

Counsel for the parties have met-and-conferred in an effort to resolve this matter, but

have been unable to reach an accord. The parties first discussed ESI discovery at an in-person

conference in Milwaukee, Wisconsin on October 8, 2014 at 10:30 a.m. On October 17, 2014,

Plaintiffs submitted their proposed ESI search protocol and associated list of search strings to the

Municipal Defendants, which obligated the parties to produce relevant, responsive, non-

duplicative ESI from January 2006 – present. (Ex. A, Oct. 17, 2014 E-mail from M. Rito-Foukas

to M. Cohen). On October 29, 2014, the parties had a telephonic meet and confer regarding ESI

discovery and other topics. Shortly thereafter, the parties reached an agreement regarding the

timeframe for the search; however, the Municipal Defendants had comments on the proposed

search protocol and list of search strings. (Ex. B, Oct. 30, 2014 E-mail from K. Pozan to W.

Stuart; Ex. C, Nov. 3, 2014 E-mail from K. Pozan to W. Stuart).

Numerous meetings and e-mails between the parties have since taken place, and pursuant

to this Court’s standing order, Plaintiffs have made every effort to resolve the issue underlying

this motion. Archive tapes (or as the Municipal Defendants call them, “backup tapes”) were first

discussed in detail during a telephonic meet-and-confer on November 5, 2014 at 4:00 p.m. They

were again discussed during telephonic conferences on November 21, November 25 and

December 2, 2014. The Municipal Defendants agreed to provide a cost estimate for searching the


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archive tapes so Plaintiffs could meaningfully evaluate their “burden” claim. The estimate of

$19,100 to $36,250 was produced shortly before an in-person meet-and-confer on January 8,

2015 in Milwaukee. (Ex. D, Jan. 8, 2015 E-mail from W. Stuart to A. Foukas; Ex. E, Digital

Intelligence Price Estimate)1. Unable to resolve the issue through multiple conferences, the

parties are at an impasse and the matter must be resolved by the Court.

III. Applicable Legal Standards

Federal Rule of Civil Procedure 26(b)(1) permits discovery “regarding any nonprivileged

matter that is relevant to any party’s claim or defense.” FED. R. CIV. P. 26(b)(1). Parties are

entitled to broad discovery under the federal rules because “[m]utual knowledge of all relevant

facts gathered by parties to litigation is essential to proper litigation.” Hickman v. Taylor, 329

U.S. 495, 507 (1947). Therefore, “the party opposing a motion to compel carries a ‘heavy’

burden of persuasion.” Kleen Products LLC v. Packaging Corp. of Am., No. 10 C 5711, 2012

WL 4498465, at *13 (N.D. Ill. Sept. 28, 2012) (quoting United States v. AT&T Inc., No. 11 CV

1560, 2011 WL 5347178, at *5 (D.D.C. Nov. 6, 2011)) (alteration in original).

The right to broad discovery is even more important in civil rights actions. See King v.

Conde, 121 F.R.D. 180, 195 (E.D.N.Y. 1988) (“The great weight of the policy in favor of

discovery in civil rights actions supplements the normal presumption in favor of broad

discovery.”); Wood v. Breier, 54 F.R.D. 7, 11 (E.D. Wis. 1972) (“[I]t is of special import that

suits brought under [Section 1983] be resolved by a determination of the truth rather than by a

determination that the truth shall remain hidden.”).

1 Plaintiffs are only requesting that the Municipal Defendants restore e-mails and associated ESI from January 2006 – May 2009, and so the costs associated with “Restoration of File Archive Backup Tapes” have been subtracted from the total estimated charges. Moreover, the cost to catalog the archive tapes, the first line item under “Restoration of Email Archive Backup Tapes,” was previously incurred by the Municipal Defendants in determining which of the 68 pre-Datacove archive tapes contained data from the Exchange server. Accordingly, this cost has also been subtracted from the total estimated charges.


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The same is true in cases involving conspiracies, such as the one at the heart of Plaintiffs’

RICO claims. In the analogous context of antitrust cases, “[b]road discovery is permitted because

direct evidence of an anticompetitive conspiracy is often difficult to obtain, and the existence of

a conspiracy frequently can be established only through circumstantial evidence, such as

business documents and other records.” Kleen Products LLC, 2012 WL 4498465, at *13; see

also Hosp. Bldg. Co. v. Trs. of Rex Hosp., 425 U.S. 738, 746 (1976) (proof of an anticompetitive

conspiracy is “largely in the hands of the alleged conspirators”) (citation omitted).

With particular respect to ESI, the fundamental rule is that parties are required to produce

ESI from reasonably accessible sources. FED. R. CIV. P. 26(b)(2)(B). Thus, any party refusing to

produce relevant ESI “must show that the information is not reasonably accessible because of

undue burden or cost.” Id. Even if that showing is made, however, “the court may nonetheless

order discovery from such sources if the requesting party shows good cause, considering the

limitations of Rule 26(b)(2)(C).” Id.

In determining whether to limit discovery within the broad framework discussed above,

courts are required by Rule 26(b)(2)(C) to consider whether:

(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) 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 the discovery in resolving the issues.

FED. R. CIV. P. 26(b)(2)(C). In consideration of the above factors, the Municipal Defendants

cannot meet their burden and should be ordered to produce the relevant ESI.


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IV. Argument

A. The requested ESI is integral to Plaintiffs’ ability to prosecute their claims

Plaintiffs allege a wide-reaching conspiracy beginning in 2006 and continuing to the

present day. The archive tapes in question are the sole source of ESI generated between January

2006 – May 2009, and the 2006 – 2009 timeframe constitutes a significant portion of the relevant

time period. It is likely that e-mails sent or received by the Municipal Defendants during this

time constitute important relevant evidence, especially where, as here, motive and intent are

important considerations and proof is largely in hands of the alleged conspirators. See Poller v.

Columbia Broad. Sys., Inc., 368 U.S. 464, 473 (1962).

Here, Plaintiffs have a good faith basis to believe the archive tapes in question contain

racist and conspiratorial e-mails substantiating their claims. As discussed above, recent search

results across the June 2009 – present time period reveal the use of many racist and

conspiratorial terms. Plaintiffs expect to find a similar number of racist and conspiratorial terms

in e-mails generated by the Municipal Defendants on the archive tapes at issue. Evidence of the

Municipal Defendants’ racism is undoubtedly relevant to proving their claims. See Smith v.

Wilson, 705 F.3d 674, 678 (7th Cir.), cert. denied, 134 S. Ct. 201 (2013), reh’g denied, 134 S.

Ct. 989 (2014) (“[E]vidence of [defendant’s] racism certainly could have allowed a jury to

attribute [plaintiff’s] exclusion solely to race . . .”); Scott v. Sulzer Carbomedics, Inc., 141

F.Supp.2d 154, 175 (D. Mass. 2001) (quoting Brown v. East Mississippi Electric Power Ass’n,

989 F.2d 858, 861 (5th Cir. 1993)) (“[U]se of a notorious racial slur constituted direct evidence

of discrimination, because it was an invidious word with such a charged history that its mere use

proves the fact of discrimination ‘without inference or presumption.’”).


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B. The Municipal Defendants have failed to demonstrate that the archive tapes on which the requested ESI is located are “not reasonably accessible”

As the party objecting to discovery, the burden is placed on the Municipal Defendants to

show that the requested ESI is “not reasonably accessible.” See Heraeus Kulzer, GmbH v.

Biomet, Inc., 633 F.3d 591, 598 (7th Cir. 2011). Under Rule 26(b)(2)(B), ESI is categorized as

either “reasonably accessible” or “not reasonably accessible.” Undue burden or cost alone is not

sufficient to trigger a finding of inaccessibility. Chen-Oster v. Goldman, Sachs & Co., 285

F.R.D. 294, 301 (S.D.N.Y. 2012). Rather, the undue burden or cost must be associated with

some technological complexity that hinders accessibility. Id; see Debra Lyn Bassett,

Reasonableness in E-Discovery, 32 CAMPBELL L. REV. 435, 451 (2010) (“[A] court should only

find inaccessibility if accessibility overlaps with either undue burden or undue cost.”).

In determining whether the technological features of a given source of ESI render it “not

reasonably accessible,” courts have continued to consult the landmark case of Zubulake v. UBS

Warburg LLC and its progeny. In that case, Judge Shira A. Scheindlin of the Southern District of

New York, a scholar in the area of ESI discovery, identified five categories of data, from most

accessible to least accessible, as “active, online data;” “near-line data;” “offline

storage/archives;” “backup tapes;” and “erased, fragmented or damaged data.” Zubulake v. UBS

Warburg LLC, 217 F.R.D. 309, 318–19 (S.D.N.Y. 2003) (“Zubulake I”). The first three

categories were accessible, while the last two were inaccessible. Id. at 319–20.

The five Zubulake categories, however, should serve only as a starting point for a court’s

accessibility analysis. Zubulake I was decided before Rule 26(b)(2)(B) came into effect, and so

the court was not applying the Rule’s provisions. Moreover, the Advisory Committee’s note

indicates that the 2006 amendments to Rule 26(b)(2) were designed with flexibility in mind due

to the constantly evolving and shifting world of electronic technology. See FED. R. CIV. P. (b)(2)


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Advisory Committee’s note (2006) (“It is not possible to define in a rule the different types of

technological features that may affect the burdens and costs of accessing electronically stored

information.”). The Advisory Committee had great foresight because in the 12 years since

Zubulake I, technological advancements have lessened the burden and cost of restoring backup

tapes and other previously inaccessible sources of ESI. INST. FOR THE ADVANCEMENT OF THE

AM. LEGAL SYS., NAVIGATING THE HAZARDS OF E-DISCOVERY: A MANUAL FOR JUDGES IN STATE

COURTS ACROSS THE NATION 12 (2d ed. 2012). That said, using the Zubulake categorizes here

illustrates that the Municipal Defendants have failed to establish that the archive tapes in

question are “not reasonably accessible.”

“Offline storage/archives” and “backup tapes” served as the dividing line for accessibility

of the five Zubulake categories. The Zubulake I court defined “offline storage/archives” as

“removable optical disk or magnetic tape media, which . . . is traditionally used for making

disaster copies of records and also for records considered ‘archival’ in that their likelihood of

retrieval is minimal.” Zubulake I, 217 F.R.D. at 319. In contrast, “backup tapes” are “sequential-

access devices, which means that to read any particular block of data, you need to read all the

preceding blocks.” Id. This makes data retrieval from backup tapes more time consuming.

“Backup tapes also typically employ some sort of data compression.” Id.

The Zubulake I court obtained its definitions for “offline storage/archives” and “backup

tapes” from Cohasset Associates, Inc., White Paper: Trustworthy Storage and Management of

Electronic Records: The Role of Optical Storage Technology (April 2003), which highlights

another important distinction between “backup tapes” and “offline storage/archives”: “A disaster

copy of a record is different from a traditional ‘backup copy’ in that the disaster recovery copy is

never intended to be overwritten.” COHASSET ASSOCIATES, INC., WHITE PAPER: TRUSTWORTHY


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STORAGE AND MANAGEMENT OF ELECTRONIC RECORDS: THE ROLE OF OPTICAL STORAGE

TECHNOLOGY 12, n. vii (2003). “Off-line storage of electronic records is traditionally used for

making disaster copies of records and also for records considered ‘archival’ in that their

likelihood of retrieval is minimal.” Id. at 11. Backup tapes, on the other hand, “are typically

recycled since they contain snapshot copies of information that is constantly changing.” Id. at 19

n. vii; accord Hagemeyer N. Am., Inc. v. Gateway Data Sciences Corp., 222 F.R.D. 594, 600

(E.D. Wis. 2004) (“Backup tapes record a ‘snapshot’ of the contents of the computer system at

the moment the backup is run.”). The fact that backup tapes are continuously recycled is one of

the main reasons why they are typically deemed inaccessible. See John H. Beisner, Discovering

A Better Way: The Need for Effective Civil Litigation Reform, 60 Duke L.J. 547, 570 (2010)

(“ExxonMobil noted to the Federal Rules Advisory Committee [that] if a court ordered the

company to interrupt the recycling of its backup systems, the annual cost of extra backup tapes

for maintaining its electronic data in the United States alone would amount to $23.76 million.”);

Thomas Y. Allman, The Case for A Preservation Safe Harbor in Requests for E-Discovery

Despite the Courts’ Increased Attention to Dragnet Requests for Production of Electronic

Materials, the Scope of Preservation Should Be Addressed, 70 DEF. COUNS. J. 417, 420 (2003)

(“[B]ecause some backup systems are partly or fully automatic, interrupting established

automatic processes can be difficult and labor intensive. Halting reuse of backup tapes also

would require the purchase of . . . extra tapes as well as burdensome arrangements for storage

and access to tapes no longer being recycled.”).

Bearing these distinctions in mind, it is clear the Municipal Defendants have not met their

burden of proving inaccessibility with regard to storage media. There are two separate sets of

tapes at issue here, both of which are more akin to offline storage/archives than backup tapes.


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Some of the archived information is stored on 22 Datacove tapes. (Ex. F, Nov. 12, 2014 E-mail

from W. Stuart to K. Pozan). While the tapes can be overwritten and reused, there is no

indication that these particular tapes are recycled like traditional backup tapes. (Ex. G, Dec. 17,

2014 E-mail from W. Stuart to A. Foukas). Rather, it appears the opposite is true: the data

written to these tapes is never overwritten, making them, by definition, “offline

storage/archives.” And although the data on the 22 Datacove tapes is compressed, they are

random-access tapes, which also favors their categorization as “offline storage/archives.” (Ex. F,

Nov. 12, 2014 E-mail from W. Stuart to K. Pozan). Random-access is faster if you need to read

or write data in a random order. See Zubulake I, 217 F.R.D. at 319. The remaining information is

stored on 68 pre-Datacove tapes, only eight of which contain data from the Exchange server.

(Ex. G, Dec. 17, 2014 E-mail from W. Stuart to A. Foukas).2 These tapes share traits of both

categories. The pre-Datacove tapes are sequential-access DLT-IV tapes, which supports their

categorization as “backup tapes.” (Ex. G, Dec. 17, 2014 E-mail from W. Stuart to A. Foukas).

However, the fact that there is no indication these tapes are recycled tips the scales back toward

“offline storage/archives.”

The Municipal Defendants’ cost estimate for extracting, indexing and searching the data

stored on the tapes is also not sufficient to trigger a finding of inaccessibility in a case such as

this that has the potential for a multi-million dollar recovery. See Zubulake I, 217 F.R.D. at 321

(“A response to a discovery request costing $100,000 sounds (and is) costly, but in a case

potentially worth millions of dollars, the cost of responding may not be unduly burdensome.”).

Here, the estimated cost of restoring the relevant tapes ranges from $19,100 to $36,250. (Ex. E,

Digital Intelligence Price Estimate); see supra text accompanying note 1. These figures pale in

2 Plaintiffs are not requesting that the Municipal Defendants produce ESI from the 60 pre-Datacove tapes that do not contain data from the Exchange server.


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comparison to estimates in similar cases with amounts in controversy in the millions of dollars.

See, e.g., Zubulake v. UBS Warburg LLC, 216 F.R.D. 280, 282–83 (S.D.N.Y. 2003) (“Zubulake

III”) (approximately $166,000 to restore and search 94 back-up tapes); Quinby v. WestLB AG,

245 F.R.D. 94, 109 (S.D.N.Y. 2006) ($226,266.60 to restore and search six former employees’ e-

mails).

C. There exists good cause for this Court to order the Municipal Defendants to produce ESI from the City’s archive tapes

Even if this Court finds that the City’s archive tapes are “not reasonably accessible,” it

should nonetheless order the Municipal Defendants to produce relevant, responsive, non-

duplicative ESI located on those tapes. A requesting party may obtain discovery from

inaccessible sources by filing a motion to compel and “showing good cause, considering the

limitations of Rule 26(b)(2)(C)” that balance the costs and potential benefits of discovery. FED.

R. CIV. P. 26(b)(2)(B).

The Advisory Committee notes to the 2006 amendments suggest that courts weigh the

following factors when engaging in a good-cause inquiry:

1. the specificity of the discovery request; 2. the quantity of information available from other and more easily accessed

sources; 3. the failure to produce relevant information that seems likely to have existed

but is no longer available on more easily accessed sources; 4. the likelihood of finding relevant, responsive information that cannot be

obtained from other, more easily accessed sources; 5. predictions as to the importance and usefulness of the further information; 6. the importance of the issues at stake in the litigation; and 7. the parties’ resources.

FED. R. CIV. P. (b)(2) Advisory Committee’s note (2006).

Here, Plaintiffs can demonstrate good cause for this Court to order the Municipal

Defendants to produce ESI from the City’s archive tapes. Regarding the first factor, Plaintiffs


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have worked closely with the Municipal Defendants in an attempt to narrowly tailor their

discovery requests by employing search strings and limiting the search to a defined list of

essential city employees whose data sets are likely to contain relevant, responsive ESI.

The second, fourth and fifth factors also weigh in favor of production. Plaintiffs allege an

ongoing conspiracy beginning in 2006. The years 2006 – 2009 therefore constitute a significant

portion of the relevant time period. It is likely that e-mails sent or received by the Municipal

Defendants during that time period constitute important relevant evidence. See U.S. E.E.O.C. v.

Dolgencorp, LLC, No. 13 CV 04307, 2014 WL 3734361, at *2 (N.D. Ill. July 29, 2014)

(compelling the defendant to produce pre-2008 ESI where the plaintiff alleged that the

defendant’s criminal background checks led to a disparate impact on minority job applicants

beginning in 2004). In addition, the archive tapes at issue are the only source of e-mail from this

time period and are integral to Plaintiffs’ ability to prove their claims.

The last two factors also favor production: the issues at stake in this case—alleged civil

rights and RICO violations involving the fifth-largest city in Wisconsin—are immensely

important. Further, the City is being defended by an insurance carrier and has far more resources

available to it than seven individuals who had their businesses wrongfully taken from them. Only

the third factor—the failure to produce relevant information that seems likely to have existed but

is no longer available on more easily accessed sources—weighs against production because

Plaintiffs are not alleging spoliation.

Because six of the seven factors favor production, good cause exists for this Court to

order the Municipal Defendants to produce ESI from the City’s archive tapes. See, e.g., Guy

Chem. Co. v. Romaco AG, 243 F.R.D. 310, 312 (N.D. Ind. 2007) (good cause existed where

there was no other location the requesting party could turn to acquire the requested discovery and


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the discovery was crucial to the requesting party’s lawsuit); In re Veeco Instruments, Inc. Sec.

Litig., No. 05 MD 1695, 2007 WL 983987, at *1 (S.D.N.Y. Apr. 2, 2007) (finding good cause to

order restoration of e-mail backup tapes because it was not demonstrated that these e-mails were

reasonably available from any other easily accessed source, the discovery requests were specific,

and the resources of the parties were not an issue).

D. The cost of producing ESI stored on the City’s archive tapes should be borne by the Municipal Defendants

The Municipal Defendants have expressly conditioned the production of ESI from the

City’s archive tapes on Plaintiffs’ agreement to pay for the costs associated with extracting e-

mail data from the tapes, indexing and searching the data, and producing relevant, responsive,

non-duplicative ESI. The Municipal Defendants are using cost-shifting as both a sword and a

shield: as a tool to delay discovery in a case with an expedited discovery schedule, and as a

shield to preclude Plaintiffs from discovering relevant, non-duplicative ESI.

The Zubulake court cautioned that wealthy organizations will use the prospect of cost-

shifting as a tool to prevent plaintiffs who are at a financial disadvantage from discovering

relevant information necessary to prosecute their claims:

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 favor[ing] resolving disputes on their merits,’ and may ultimately deter the filing of potentially meritorious claims.

Zubulake I, 217 F.R.D. at 317–18 (quoting Pecarsky v. Galaxiworld.com, Inc., 249 F.3d 167,

172 (2d Cir. 2001)) (alteration in original).

The general presumption in discovery is that responding parties must bear the expense of

complying with discovery requests. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358


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(1978). The same is true for ESI discovery. DeGeer v. Gillis, 755 F.Supp.2d 909, 928 (N.D. Ill.

2010). Cost-shifting should therefore be considered only when ESI discovery imposes an “undue

burden or expense” on the responding party. See Dolgencorp, LLC, 2014 WL 3734361, at *3;

Zubulake I, 217 F.R.D. at 318.

Once a court determines it is appropriate to engage in a cost-shifting analysis, it must

consider the following factors:

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; 7. the importance of the requested discovery in resolving the issues at stake in

the litigation; and 8. The relative benefits to the parties of obtaining the information.

Clean Harbors Envtl. Servs., Inc. v. ESIS, Inc., No. 09 C 3789, 2011 WL 1897213, at *2 (N.D.

Ill. May 17, 2011) (citing Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568, 573 (N.D. Ill.

2004)); see also Zubulake I, 217 F.R.D. at 322. In order to account for the proportionality test set

forth in Rule 26(b)(2)(C)(iii), the court in Wiginton modified the test as initially set forth in

Zubulake I by adding an additional factor that considers the importance of the requested

discovery in resolving the issues of the litigation. Wiginton, 229 F.R.D. at 573.

Courts applying this test should not weigh the eight factors evenly. Zubulake I, 217

F.R.D. at 323; see also Wiginton, 229 F.R.D. at 573–77 (discussing the eight factors in order of

importance). The first two factors—(1) the extent to which the request is specifically tailored to

discover relevant information, and (2) the availability of such information from other sources—

are the most important. Zubulake I, 217 F.R.D. at 323. The second-most important group of


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factors addresses cost issues. Id. These factors include: (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 and (5) the relative ability of each party to control costs and its incentive to do so.

Id. The third-most important “group”—(6) the importance of the issues at stake in the

litigation—is only a single factor, and will rarely come into play. Id. “But where it does, this

factor has the potential to predominate over the others.” Id. (emphasis added). The seventh

factor—(7) the importance of the requested discovery in resolving the issues at stake in the

litigation—is next in terms of importance. Wiginton, 229 F.R.D. at 576. The last factor—(8) the

relative benefits of production as between the requesting and producing parties—is the least

important because a response to a discovery request generally benefits the requesting party.

Zubulake I, 217 F.R.D. at 323.

A court applying the eight-factor test in the instant case can reach only one conclusion:

the cost of producing ESI from the archive tapes in question should be borne by the City. The

first two factors, which are the most important, weigh heavily against cost-shifting. Plaintiffs

have narrowly tailored their request by employing search strings and limiting the search to a

defined list of essential city employees whose data sets are likely to contain relevant, responsive

ESI, and the ESI Plaintiffs seek is not available from any other source.

The second-most important group of factors, which deal with cost issues, also weigh

against cost-shifting. First, the amount in controversy greatly exceeds the estimated cost of

production which is between $19,100 and $36,250. (Ex. E, Digital Intelligence Price Estimate);

see supra text accompanying note 1. Second, the City is being defended by an insurance carrier

and has far more resources available to it compared to seven individuals who had their

businesses wrongfully taken from them. See Wiginton, 229 F.R.D. at 575–76 (citing Xpedior


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Creditor Trust v. Credit Suisse First Boston (USA), Inc., 309 F.Supp.2d 459, 466 (S.D.N.Y.

2003)) (finding that this factor weights against cost-shifting where defendant’s assets dwarfed

plaintiff’s assets even if plaintiff’s attorney could contribute). While the projected costs are

significant, they are not so substantial as to warrant fee-shifting given the importance of ESI

from January 2006 – May 2009, the amount of damages at stake in this litigation, and the

Municipal Defendants’ ability to absorb the cost of the requested ESI discovery. Third, while it

is generally understood that all parties have an incentive to control costs in discovery, Plaintiffs

have agreed to work with the Municipal Defendants to evaluate the number of “hits” generated

by a given search string and remove search terms that are likely overbroad. (Ex. H, Jan. 13, 2015

E-mail from A. Foukas to W. Stuart).

The sixth factor—the importance of the issues at stake in the litigation—is a critical

consideration here and again favors Plaintiffs’ position. Racial discrimination and municipal

racketeering are issues which are immensely important to the public. Zubulake I, 217 F.R.D. at

321 (noting that “toxic tort class actions, environmental actions, so-called ‘impact’ or social

reform litigation, cases involving criminal conduct, or cases implicating important legal or

constitutional questions” are those that may have broad public impact); see Major Tours, Inc. v.

Colorel, No. CIV. 05 3091, 2009 WL 3446761, at *6 (D.N.J. Oct. 20, 2009) aff’d, 720 F.Supp.2d

587 (D.N.J. 2010) (noting that case involving racial profiling and discrimination claims against

the New Jersey Department of Transportation is one involving issues of paramount public

importance). The seventh factor also weighs against cost-shifting. Proof of the conspiracy at the

heart of this lawsuit is “largely in the hands of the alleged conspirators,” and the e-mails located

on the archive tapes in question are paramount to Plaintiffs’ ability to prove their claims. While

the eighth and final factor—the relative benefits to the parties of obtaining the information—


17

favors cost-shifting, it is the least important factor because it is the requesting party that usually

benefits from its requests. Zubulake I, 217 F.R.D. at 323; Wiginton, 229 F.R.D. 577.

As all but the least important of the eight factors weigh against cost-shifting, the

Municipal Defendants should be required to bear the costs associated with producing relevant,

responsive ESI from the archive tapes in question.

V. Conclusion

WHEREFORE, for the above discussed reasons, this Court should enter an Order

compelling the Municipal Defendants to produce relevant, responsive electronically stored

information located on the City of Racine’s archive tapes, and to bear the costs associated with

same.

Respectfully submitted, KOHLER & HART, S.C.

By: /s/ Martin E. Kohler

Martin E. Kohler, Esq. WI State Bar No. 1016725 [email protected] 735 N. Water Street, Suite 1212 Milwaukee, Wisconsin 53202 (414) 271-9595 Attorney for the Plaintiffs

SEGAL MCCAMBRIDGE SINGER & MAHONEY, LTD.

By: /s/ Steven A. Hart Steven A. Hart IL State Bar No. 6306516 [email protected] Brian H. Eldridge IL State Bar No. 6281336 [email protected] 233 S. Wacker Drive, Suite 5500 Chicago, Illinois 60606 (312) 645-7800 Attorney for Plaintiffs


motion to compel, " shocking information"

Documents