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AL Case Blurb: Cooper Tire and Rubber; Supreme Court Adopts Modified Zubulake Test for Cost Shifting Decisions

Posted by rjbiii on June 21, 2008

Post Process-This is a Case Blurb from the State of Alabama, whose laws regarding discovery will differ from those of the Federal Courts.

“First, under the marginal utility approach, the more likely it is that the search will discover critical information, the fairer it is to have the responding party search at its own expense. McPeek v. Ashcroft, 202 F.R.D. 31, 34 (D.D.C. 2001). Next, the court in Rowe created eight factors for consideration in the cost-shifting analysis, one of which incorporated the marginal utility test. 205 F.R.D. at 429. Finally, the court in Zubulake I modified the Rowe test to account for the fact that it interpreted the Rowe test as generally favoring cost-shifting, which had ignored the presumption that the responding party pays for discovery. 217 F.R.D. at 320. We agree with both the Rowe court and the Zubulake court that the marginal utility test is the most important factor. Furthermore, while we are guided by the remainder of the Rowe and Zubulake factors, we find that the proportionality test set forth in Rule 26(b)(2)(C)(iii)[, Fed.R.Civ.P.,] must shape the test. Thus, we modify the Zubulake rules by adding a factor that considers the importance of the requested discovery in resolving the issues of the litigation.

The eight factors are: (1) the specificity of the discovery requests; (2) the likelihood of discovering critical information; (3) the availability of such information from other sources; (4) the purposes for which the responding party maintains the requested data; (5) the relative benefit to the parties of obtaining the information; (6) the total cost associated with production; (7) the relative ability of each party to control costs and its incxentive to do so; and (8 ) the resources available to each party. Rowe, 205 F.R.D. at 429.

The seven Zubulake factors are (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. 217 F.R.D. at 322. We agree with the court in Zubulake that the fourth Rowe factor (the purposes for which the responding party maintains the requested data) is not important.”

“Therefore, we will consider the following factors: 1) the likelihood of discovering critical information; 2) the availability of such information from other sources; 3) the amount in controversy as compared to the total cost of production; 4) the parties’ resources as compared to the total cost of production; 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. At all times we keep in mind that because the presumption is that the responding party pays for discovery requests, the burden remains with [Producing Party] CBRE to demonstrate that costs should be shifted to [Requesting Party]. See Zubulake II, 216 F.R.D. at 283.

Ex parte Cooper Tire & Rubber Co., 2007 Ala. LEXIS 229, 41-44 (Ala. Oct. 26, 2007)

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Posted in AL Sup. Ct. Justice Sue Bell Cobb, Alabama, Case Blurbs-AL, Cost of Discovery, Cost Shifting | Leave a Comment »

AL Case Blurb: Cooper Tire and Rubber; Supreme Court Discusses Standards for Appealing Trial Court Decisions on Discovery

Posted by rjbiii on June 21, 2008

Post Process-This is a Case Blurb from the State of Alabama, whose laws regarding discovery will differ from those of the Federal Courts.

A writ of mandamus can be issued to affect the trial court’s control of the discovery process, but this Court’s review of a petition seeking a writ in a discovery dispute is particularly stringent: “The law relating to the issuance of a writ of mandamus in a case involving a discovery dispute was recently set out in Ex parte Henry, 770 So. 2d 76 (Ala. 2000). In Ex parte Henry, this Court stated: “‘Rule 26 Ala. R. Civ. P., governs the discovery of information in civil actions. When a dispute arises over discovery matters, the resolution of the dispute is left to the sound discretion of the trial court. “Discovery matters are within the trial court’s sound discretion, and its ruling on those matters will not be reversed absent a showing of abuse of discretion and substantial harm to the appellant.” Wolff v. Colonial Bank, 612 So. 2d 1146, 1146 (Ala. 1992) (citations omitted); see also Ex parte Hicks, 727 So. 2d 23, 33 (Ala. 1998 ) (Maddox, J., dissenting).

“‘… The writ of mandamus is a drastic and extraordinary remedy, to be issued only when there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court. Ex parte Horton, 711 So. 2d 979, 983 (Ala. 1998 ) (citing Ex parte United Serv. Stations, Inc., 628 So. 2d 501 (Ala. 1993)); Ex parte Alfab, Inc., 586 So. 2d 889, 891 (Ala. 1991) (citing Martin v. Loeb & Co., 349 So. 2d 9 (Ala. 1977)). Moreover, this Court will not issue a writ of mandamus compelling a trial judge to alter a discovery order unless this Court “determines, based on all the facts that were before the trial court, that the trial court clearly abused its discretion.” Ex parte Horton, 711 So. 2d at 983. Moreover, “‘[t]he right sought to be enforced by mandamus must be clear and certain with no reasonable basis for controversy about the right to relief,’ and ‘[t]he writ will not issue where the right in question is doubtful.'” Ex parte Bozeman, 420 So. 2d 89, 91 (Ala. 1982) (quoting Ex parte Dorsey Trailers, Inc., 397 So. 2d 98, 102 (Ala. 1981)).'”

Ex parte Pitts, 822 So. 2d 418, 421-22 (Ala. 2001). See also Ex parte Ocwen Federal Bank, FSB, 872 So. 2d 810, 813 (Ala. 2003)(holding that “mandamus will issue to reverse a trial court’s ruling on a discovery issue only (1) where there is a showing that the trial court clearly exceeded its discretion, and (2) where the aggrieved party does not have an adequate remedy by ordinary appeal. The petitioner has an affirmative burden to prove the existence of each of these conditions.”). The Court in Ocwen noted that “[i]n certain exceptional cases … review by appeal of a discovery order may be inadequate” and that among those exceptional cases were those in which “a discovery order compels the production of patently irrelevant or duplicative documents, such as to clearly constitute harassment or impose a burden on the producing party far out of proportion to any benefit that may obtain to the requesting party ….” 872 So. 2d at 813. See also Ex parte Crawford Broad. Co., 904 So. 2d 221 (Ala. 2004). Moreover, we are also aware of HN8the fundamental disinclination of the appellate courts to intrude into the trial court’s province of conducting the litigation process. Appellate courts are fundamentally directed toward the review of an appeal after a case is concluded in the trial court, and they are not well equipped to manage the trial court’s business, particularly where the appellate caseload is more than sufficient to fully occupy the court’s time. This Court has long recognized the principle that “‘[c]ases should not be tried by piecemeal, and separate and distinct rulings upon the evidence brought to this court pending the progress of the trial ….'” Ex parte Alabama Power Co., 280 Ala. 586, 599, 196 So. 2d 702, 715 (1967)(quoting Ex parte Little, 205 Ala. 517, 517, 88 So. 645, 646 (1921)).

Ex parte Cooper Tire & Rubber Co., 2007 Ala. LEXIS 229 at *25-28 (Ala. Oct. 26, 2007)

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