Electronic discovery is trendy, but costly, and something of a needle in a haystack approach - which makes the recent district court ruling that the employer/defendant in a sex discrimination case must pay to restore e-mail backups probably a bad precedent, as described here in this ZDNet article and earlier in this NY Times article (registration required), which begins with these words:
"A federal judge ordered UBS yesterday to pay the majority of the costs involved in restoring e-mail evidence sought by a former employee who is accusing the bank of sex discrimination.
The decision, from Judge Shira A. Scheindlin of Federal District Court in Manhattan, said that as long as plaintiffs could prove the relevance of the e-mail to their case and that the costs involved in restoring them were reasonable, banks could be obliged not only to provide the messages but also assume the expense.
She then ordered UBS to produce and pay for a limited portion of the e-mail messages requested by the plaintiff, Laura Zubulake, a former equities trader.
The estimated cost is $273,650, according to UBS, with $165,954 going to the restoration process. UBS is required to pay 75 percent, while Ms. Zubulake would pay for the rest.
The decision was seen as having wide legal significance, especially in arbitration cases, where individual investors are seeking damages from investment banks that they say provided fraudulent research. Lawyers have sought e-mail evidence from banks, which have generally refused to comply."