Court denies Defendant’s motion to shift cost of utilizing OCR to documents by using Zubulake Factors

Proctor & Gamble Co. v. S.C. Johnson & Son, Inc., 2009 WL 440543 (E.D. Tex. Feb 19, 2009)

Following the court’s decision that all documents were to be produced electronically in TIFF format with Optical Character Recognition (“OCR”), the defendant claimed that the processing costs should be shifted to the plaintiff. The Defendant claimed that the OCR costs would exceed $200,000 and that “it does not itself seek to use the OCR process, and any extra expense would be incurred on it behalf solely for Plaintiff’s convenience.”

In making its determination, the court indicated its intent to rely on the multi-factor test adopted in Zubulake v. USB Warburg, LLC, despite its “slightly different context.”  217 F.R.D. 309 (S.D.N.Y. 2003).  Those factors were:

1. The extent to which the request was specifically tailored to discover relevant information;
2. The availability of such information from other sources;
3. The total cost of production, when compared to the amount in controversy;
4. The total cost of production, when compared to the resources available to each party;
5. The relative ability of each party to control costs and the 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.
   

The court looked at Zubulake’s instructions that the factors not be equally weighted but rather considered in ascending order, and first noted defendant’s failure (beyond a statement that the request was “overbroad”) to contend that the information requested was not relevant or likely to lead to the discovery of admissible information.

Then finding that “the remaining factors also do not favor cost shifting,” the court specifically addressed the lack of any showing that the documents requested were obtainable from other sources.

Accordingly, the court concluded:

OCR, while perhaps not absolutely necessary to litigation, is a tool that greatly decreases the time and effort counsel must invest in searching and examining documents.  Presumably, each party would perform the OCR process in a cost-effective manner to minimize their costs.  Requiring the parties to incur this cost, when the OCR process is likely to streamline the discovery process and reduce the chance that either side will employ tactics designed to hide relevant information in a mountain of difficult-to-search documents is neither unreasonable nor burdensome.

Therefore, after review of the Zubulake factors, the court concludes that cost shifting is not appropriate in this case.