Tennessee Federal Court Applied Rowe Test for Cost Shifting
Arguably the most important question in dealing with electronic discovery is deciding who should pay for it. Considering a broad e-discovery request can cost millions of dollars to respond to, this is not a minor discovery squabble. A number of multi-factor tests have been springing up across the U.S., each designed to determine when the requesting party should pick up the cost of the producing party's efforts in responding to expensive discovery requests. No test has really become the frontrunner yet, so you have to check into your particular jurisdiction's prior decisions.
Out of the Western District of Tennessee, Magistrate Judge Vescovo used the eight factor Rowe test in 2003. The Rowe 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 the production; (7) the relative ability of each party to control costs and its incentive to do so; and (8) the resources available to each party.
Take a look at Judge Vescovo's decision in Medtronic Sofamor Danek, Inc. v. Michelson, where he ultimately decided to shift some of the costs to the requesting party.