Washington Law Review


John T. Yip


The volume of electronically stored information (ESI) is expanding rapidly. Under the Federal Rules of Civil Procedure, litigants may request electronic discovery (ediscovery) of many different forms of ESI. In 1978, the U.S. Supreme Court held that the party responding to an e-discovery request presumptively pays all e-discovery costs, including the costs of preserving, producing, and reviewing the requested ESI. Therefore, the rapidly increasing volume of ESI has substantially increased the costs of e-discovery for producing parties. In the 2003 case, Zubulake v. UBS Warburg LLC, the U.S. District Court for the Southern District of New York established a two-step test that allows a court to shift some of the e-discovery costs from the responding party to the requesting party. Since 2003, many federal district courts and some state courts have followed the two-step Zubulake test for conducting e-discovery in the United States. However, no court has yet established a test for cost-shifting in international e-discovery—conducting e-discovery on ESI located outside the United States. International e-discovery has unique costs and implicates concerns of national sovereignty. This Comment argues that courts should adopt a cost-shifting test for international e-discovery that starts with a comity analysis and then applies Zubulake’s two-step cost-shifting test. Furthermore, courts applying this test should enforce cost-shifting orders through an escrow system whereby the requesting party will deposit some of the shifted costs with the court for later disbursement to the producing party.

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