Because e-mails represent an increasingly fruitful area of discovery, courts have begun to wrestle with allocating the costs of retrieving and reviewing archived e-mails.
In Rowe Entertainment, Inc. v. William Morris Agency, Inc., 205 F.R.D. 421, 432 (S.D.N.Y. 2002), the Southern District of New York indicated that a party generally will be required to bear its own cost of producing active e-mail files, but can shift some of the cost of retrieving archived e-mails to the party seeking them in discovery. On the other hand, a producing party generally must pay for reviewing the archived e-mails for privilege, because the party had “retained privileged or confidential documents in electronic form but failed to designate them to specific files.”
One would expect other courts to consider who should bear the cost of retrieving and reviewing archived e-mails and other electronic materials—it will be interesting to see how the law develops in this area.