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Court Denies Cost Shifting Motion in Employment Discrimination Lawsuit

Posted on June 13th, 2018

In Hawa v. Coatesville Area School District (CASD), the defendant’s motion to shift costs of recovering records was denied.

Abdallah Hawa and Teresa Powell were previously employed by the defendant, CASD. After discovering what they claimed were racist text messages between CASD administration, the women filed employment discrimination and retaliation claims. When discovery began on their case, they requested ESI that included emails and other information stored on CASD servers. Complications soon arose from the request.

CASD stored the requested information in a proprietary software system that stored the emails and data in an image format. This storage method rendered the requested data not searchable using keyword searching or other text-based search tools. CASD estimated that it would cost between $15,000 to $25,000 to search for the requested data, making the data effectively inaccessible due to reasons of cost. In order to provide the requested data, CASD moved the court to shift at least 80 percent or all of those costs to the plaintiffs.

When faced with this issue, the court turned to Zubulake v. UBS Warburg LLC to determine if the cost shifting requeseted in the motion should be allowed. Using the six of the seven factors established in Zubulake (the seventh factor weighs the “benefits to the parties of obtaining the information”) the court determined that cost shifting was not warranted.  It found that the cost to search the ESI arose from CASD’s lack of foresight in chosing a proprietary software system with an unsearchable ESI format


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