Who should pay for e‐discovery? Examining the Zubulake Approach

For over two hundred years, our nation’s legal system has been based on the “American Rule” ‐ with each party bearing its own litigation costs. As the Supreme Court noted in 1975, this distinctly American tradition is “deeply rooted in our history and in congressional policy, and it is not for us to invade the legislature’s province by redistributing litigation costs…” Not surprisingly, the founders of our legal system did not anticipate the extent to which e‐mail would come to dominate our professional and personal lives. Experts estimate that 30 billion e‐mail messages are currently are being sent every day ‐ or an average of five e‐mails per day for every person on the planet.