UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

Southern Division

JOE SOLO, et al.,

 Plaintiffs,

vs.

UNITED PARCEL SERVICE CO.,

 Defendant.

Case No.: 2:14-cv-12719

Hon. Gerald E. Rosen

Mag. Judge R. Steven Whalen

ORAL ARGUMENT REQUESTED

Andrew J. McGuinness (P42074)

ANDREW J. MCGUINNESS, ESQ.

122 S Main St, Suite 118

P O Box 7711

Ann Arbor, MI 48107

Phone: (734) 274-9374

drewmcg@topclasslaw.com

Elizabeth McKenna

Charles Slidders

MILBERG LLP

One Pennsylvania Plaza, 50th Floor

New York, NY 10119

Phone: (212) 594-5300

emckenna@milberg.com

cslidders@milberg.com

Daniel R. Karon (admitted)

Beau D. Hollowell

KARON LLC

700 W St Clair Ave, Suite 200

Cleveland, OH 44113

Phone: (216) 622-1851

dkaron@karonllc.com

bhollowell@karonllc.com

Counsel for Plaintiffs and the Proposed Class

Paul T. Friedman

MORRISON & FOERSTER LLP

CityPoint One Ropemaker Street

London EC2Y 9AW

United Kingdom

Phone: 44 (20) 79204006

pfreidman@mofo.com

Greg B. Koltun

MORRISON & FOERSTER LLP

707 Wilshire Blvd

Los Angeles, CA 90017-3543

Phone: (213 892-5200

gkoltun@mofo.com

Caitlin Sinclaire Blythe

Ian K. Bausback

MORRISON & FOERSTER LLP

425 Market St

San Francisco, CA 94105-2482

Phone: (415) 268-7000

cblythe@mofo.com

ibausback@mofo.com

Bonnie Mayfield (P40275)

DYKEMA GOSSETT PLLC

39577 Woodward Ave, Suite 300

Bloomfield Hills, MI 48304

Phone: (248) 203-0851

bmayfield@dykema.com

Counsel for Defendant

PLAINTIFFS’ OBJECTION TO MAGISTRATE JUDGE WHALEN’S

JANUARY 10, 2017, OPINION AND ORDER RE. MOTION TO COMPEL 

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................... ii

INTRODUCTION ..................................................................................................... 2

BACKGROUND ....................................................................................................... 3

THE LEGAL STANDARD....................................................................................... 6

ARGUMENT............................................................................................................. 8

I. UPS Has Produced No Evidence Sufficient To Overcome The Legal 

Presumption That The Producing Party Bears Its Own Costs Of 

Production Absent Demonstrated Undue Burden ..................................... 9

II. The Court Erroneously Shifted The Costs Of Production To Plaintiffs 

Without Any Mention Of The Zubulake Factors.....................................11

III. An Analysis Of The Zubalake Factors Does Not Support CostShifting to Plaintiffs.....................................................................................11

IV. UPS Converted The Data Into An Inaccessible Format After It Was 

Reasonably Foreseeable That It Was Relevant. .......................................14

CONCLUSION........................................................................................................15

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ii

TABLE OF AUTHORITIES

Page(s)

Cases

Beacon Journal Publishing Co., Inc. v. Blackwell, 

389 F.3d 683 (6th Cir. 2004) ................................................................................8

Cason-Merenda v. Detroit Med. Ctr.,

No. 06-15601, 2008 WL 2714239 (E.D. Mich. July 7, 2008)....................8, 9, 10

U.S. ex rel. Guardiola v. Renown Health, 

No. 3:12-cv-00295, 2015 WL 5056726 (D. Nev. Aug. 25, 2015) ...........9, 10, 11

Hamilton’s Bogarts, Inc. v. Michigan, 

501 F.3d 644 (6th Cir. 2007) ................................................................................8

John B. v. Goetz, 

531 F.3d 448 (6th Cir. 2008) ................................................................................9

Jones v. Caruso, 

No. 1:07-cv-392, 2009 WL 2488052 (W.D. Mich. Aug. 12, 2009).....................7

Laethem Equip. Co. v. Deere & Co.,

261 F.R.D. 127 (E.D. Mich. 2009)................................................................. 9, 10

Lafountain v. Martin, 

No. 1:07-cv-76, 2010 WL 748215 (W.D. Mich. March 1, 2010)........................7

MFS & Co., LLC v. Caterpillar, Inc., 

No. 09-14063, 2012 WL 195510 (E.D. Mich. Jan. 24, 2012) ..............................6

Quinby v. West LB AG, 

245 F.R.D. 94 (S.D.N.Y. 2006)..........................................................................14

Solo v. United Parcel Service Co.,

819 F.3d 788 (6th Cir. 2016) ................................................................................4

Stryker Corp. v. Ridgeway, 

Nos. 113-cv-1066, 1:14-cv-889, 2015 WL 4425947 (W.D. Mich. 

July 20, 2015)..................................................................................................7, 11

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Zubulake v. UBS Warburg LLC, 

217 F.R.D. 309 (S.D.N.Y. 2003); 216 F.R.D. 280 (S.D.N.Y. 2003) ..........passim

Other Authorities

Fed R. Civ. P. 26(2)(B)..............................................................................................8

Fed. R. Civ. P. 72(a)...............................................................................................1, 6

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Concise Statement of Issues Presented

Should this Court sustain Plaintiffs’ objection to the Magistrate Judge’s order 

shifting the costs associated with UPS producing an initial set of six-month’s of 

data central to the consumer claims in this class action where (i) UPS was on 

notice of the potential relevance of the data before it stored it on back-up tapes

after the action was originally filed; (ii) UPS has failed to present any tangible 

evidence of the costs involved; and (iii) the Magistrate Judge failed to identify, 

apply, or weigh the Zubulake factors applicable to cost shifting under the Federal 

Rules of Civil Procedure?

Plaintiffs’ state: Yes.

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Controlling or Most Appropriate Authority

Fed. R. Civ. P. 26

Fed. R. Civ. P. 72

Cason-Merenda v. Detroit Med. Ctr., 2008 WL 2714239 (E.D. Mich. July 7, 2008)

Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003)

Zubulake v. UBS Warburg LLC, 216 F.R.D. 280 (S.D.N.Y. 2003)

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Pursuant to Federal Rule of Civil Procedure 72(a), Plaintiffs Joe Solo and 

BleachTech LLC (collectively “Plaintiffs”), through counsel, hereby respectfully 

object to Magistrate Judge Whalen’s January 10, 2017, Opinion and Order (ECF 

No. 89) (the “Opinion and Order” or “Order”).

Plaintiffs specifically object to the Order’s mandate that if the parties are 

unable to agree on an acceptable sampling methodology of the requested data at 

issue, then Plaintiffs (an individual and a small private company) will have the 

option of requesting that Defendant United Parcel Service Co. (“Defendant” or 

“UPS”), a company with $58 billion in annual revenue, produce package-specific 

data for the period June 30, 2013, to December 29, 2013, with Plaintiffs bearing 

the entire cost of production. See ECF No. 89 at 7-8.

For the following reasons, the Opinion and Order is erroneous and contrary 

to law:

1) There was insufficient evidence before the Court 

to overcome the presumption that UPS must pay 

its own costs in complying with its discovery 

obligations;

2) The Court failed to consider, much to less analyze 

or apply, the relevant factors for ESI cost-shifting 

cases set forth in the Federal Rules of Civil 

Procedure, as derived from the seminal case, 

Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 

322 (S.D.N.Y. 2003) (“Zubulake”);

BRIEF IN SUPPORT

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3) An analysis and application of the Zubulake

factors does not support shifting the burden of 

production to the Plaintiffs, but instead requires 

Defendant to bear the cost of production; and

4) Plaintiffs should not incur the expense associated 

with UPS’s decision to convert the data into an 

inaccessible format when it was reasonably 

foreseeable that it was discoverable material. 

INTRODUCTION

This consumer class action alleges that UPS breached its contracts with 

shippers and is liable for claims of unjust enrichment to customers of its franchise, 

“The UPS Store” outlets, and other third party shippers, because it overcharged for 

“declared value coverage” for loss or damage. In Plaintiffs’ First Set of 

Interrogatories to Defendant (see ECF No. 40, Exh. A), Plaintiffs requested that 

UPS produce information identifying the actual number of shipments described in 

detail that correspond with Plaintiffs allegations that UPS overcharged members of 

the putative class. UPS refused to do so, necessitating Plaintiffs’ Motion to 

Compel Answers to Interrogatory No. 1 (ECF No. 40) (the “Motion to Compel”).

The Opinion and Order requires Plaintiffs, Joe Solo, an individual, and 

BleachTech, a small Ohio company with 50 employees, to pay UPS, a corporation 

that generates well over $50 billion in yearly revenue, 1 the entire cost of 

 

1 UPS’s most recently filed Form 10-K shows that UPS and its subsidiaries 

generated more than $58 billion for the year ending December 2015 with a net 

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producing its own data, in direct contravention of the well-established presumption 

that each party is responsible for the costs of compliance with its discovery 

obligations. The Opinion and Order is clearly erroneous and contrary to law 

because (1) the Court did not have a sufficient basis to ignore the presumption that 

Defendant is to incur the expense of satisfying its own discovery obligations; (2)

the Order fails to even consider, much less analyze or apply, the Zubulake factors 

relevant to a determination of whether to shift the costs of ESI discovery to the 

requesting party; (3) the Court’s application of the Zubulake factors in this case 

would not have justified shifting the burden from the producing party to the 

Plaintiffs; and (4) Plaintiffs should not incur the expense associated with UPS’s

decision to convert the data into an inaccessible format when it was reasonably 

foreseeable that it was discoverable material.

BACKGROUND

To establish the scope of the case and the putative class(es), Plaintiffs served 

Interrogatory No. 1 to quantify the number of shipments with a declared value of 

$300.01 to $50,000.00 (“qualifying shipments”).” See ECF No. 40, Exh. A. The 

Interrogatory sought data for specified, relevant time periods, including, but not 

limited to, the period from June 30, 2013 to December 29, 2013. UPS’s liability 

 

income of $4.8 billion while paying out more than $2.5 billion in dividends to 

shareholders. See ECF No. 40, Exh. 1 at 20, n.19.

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for loss or damage to a shipment is limited to $100 unless the customer declares a 

higher value at the time of shipment. UPS’s pricing table shows a price of $0 for 

the first $100 of declared value (ECF No. 40 at 1). However, for every shipment 

with a declared value over $300,2 UPS overcharged customers by an increment 

approaching $1.00 (equal to $0.85 in 2013) for the first $100 of declared value. Id. 

This is contrary to UPS’s own published pricing table. Id. at 1-2. UPS admits that 

it did charge such fees. Id. at 2-3.3

UPS served its responses and objections to Interrogatory No. 1 in redacted 

form as containing “confidential” information.4

 UPS refused to provide the 

information requested (i.e., actual qualifying shipment data relevant to establish 

class size, the amount of the claims, and to identify class members). Instead, UPS 

eventually (but not until after briefing and oral argument on the Motion to Compel) 

provided only an estimate for a fraction of the requested data, for a single sixth-

 

2 That is, every direct shipment (e.g., by a business or individual who shipped a 

package under a UPS account or at a UPS-owned facility, or via its website) with a

declared value over $300 before or after December 30, 2013; and every retail 

shipment (e.g., indirect shipper such as those who shipped via a Third-Party 

Retailer, like The UPS Store) with a declared value over $200 before December 

30, 2013, or over $300 after that date. See ECF No. 40 at 2-3.

3 The Sixth Circuit previously reversed dismissal of Plaintiffs’ contract and unjust 

enrichment claims, finding that UPS’s pricing table terms are ambiguous. See Solo 

v. United Parcel Service Co., 819 F.3d 788 (6th Cir. 2016).

4 See UPS’s Responses and Objections to Plaintiffs’ First Set of Interrogatories, 

attached to ECF No. 40, Exh. B.

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month period in late 2013. UPS claimed that providing the actual data would be 

unduly burdensome and expensive. Despite several meet and confers to address 

the issues, counsel for the parties were unable to reach a resolution, and Plaintiffs 

filed their Motion to Compel on August 4, 2016. Defendant responded on August 

18, 2016, and Plaintiffs reply was filed on August 26, 2016 (ECF Nos. 40, 50, 55). 

The Court’s Opinion and Order was rendered on January 10, 2017 (ECF No. 89).

The Opinion and Order determined, solely on the basis of the self-serving 

and conclusory declaration of UPS employee, Karl Wixtrom (ECF No. 52), that for 

UPS to “produc[e] package-specific information going as far back as 2008 would 

be extraordinarily burdensome, particularly at this stage of the proceeding.” See 

ECF No. 89 at 2-4 (emphasis added). The Order apparently adopted, 

unquestioningly, Mr. Wixtrom’s unsubstantiated assertion that it would cost UPS 

$120,000 to extract all the data going back as far as 2008. Id. at 2.

Moreover, the Court acknowledged that “[t]he degree or relevance of 

information from this more limited period [June 30, 2013 to December 29, 2013] is 

high, and Plaintiff[s] properly seek[]discovery of this narrower set of data.” Id. at

6. However, despite the “high” degree of relevance of Plaintiffs’ discovery 

request, the Magistrate Judge shifted the cost of UPS’s compliance with Plaintiffs’ 

“proper” discovery request to Plaintiffs, based solely on the unsupported basis that 

the burden on UPS to produce the data for the limited six-month period “is not 

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insubstantial.” Id. The only evidence of the expense associated with UPS’s 

production was the cost of $120,000 to extract all of the data from 2008 – UPS did 

not provide evidence of the costs associated with extracting the data from the 

limited six-month period.5

In finding that the cost of producing the six-month’s of data is “not 

insubstantial” the Magistrate Judge held that “[t]he appropriate balance between 

the Plaintiff’s need for the information and the burden of producing it may be 

struck through statistical sampling.” ECF No. 89 at 6. The parties were ordered to 

“meet, confer, and agree on a mutually acceptable methodology.” Id. at 7. The 

Opinion and Order concluded “if the parties are unable to agree on an acceptable 

sampling methodology, then Plaintiff[s] will have the option of requesting that 

UPS produce the package-specific data for the period June 30, 2013 to December 

29, 2013, with Plaintiff bearing the entire cost of production.” Id. (emphasis 

added).

THE LEGAL STANDARD

This Court must “modify or set aside any part of the order that is clearly 

erroneous or is contrary to law.” Fed. R. Civ. P. 72(a). See also MFS & Co., LLC 

 

5 The Opinion and Order does not find how much it would cost for UPS to produce 

the actual data for the initially limited six-month period, as UPS did not provide a 

cost breakdown for that period. Rather, the Order only gives a cost estimate if UPS 

was to produce all its data from 2008 to the present.

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v. Caterpillar, Inc., No. 09-14063, 2012 WL 195510, at *2 (E.D. Mich. Jan. 24, 

2012) (overturning a magistrate judge’s order that denied motions to compel and 

granted a motion to quash) (quoting Fed. R. Civ. P. 72(a); 28 U.S.C. 

§ 636(b)(1)(A)). “Findings of fact are reviewed under the ‘clearly erroneous’ 

standard, and legal conclusions are reviewed under the ‘contrary to law’ standard.” 

Stryker Corp. v. Ridgeway, Nos. 113-cv-1066, 1:14-cv-889, 2015 WL 4425947, at 

*1 (W.D. Mich. July 20, 2015) (citing Gandee v. Glaser, 785 F.Supp. 684, 686 

(S.D. Ohio 1992)). 

Even if there is evidence to support a decision, “[c]lear error is present when 

the Court ‘is ‘left with the definite and firm conviction that a mistake has been 

committed.’’” Jones v. Caruso, No. 1:07-cv-392, 2009 WL 2488052, at *1 (W.D. 

Mich. Aug. 12, 2009) (“‘a finding is ‘clearly erroneous’ when although there is 

evidence to support it, the reviewing court on the entire evidence is left with the 

definite and firm conviction that a mistake has been committed.’”) (other citations 

omitted)); Stryker Corp., 2015 WL 4425947, at *1 (citing Gandee, 785 F.Supp. at 

686). A magistrate judge’s opinion is “contrary to law ‘when it fails to apply or 

misapplies relevant statutes, case law, or rules of procedure.” Lafountain v. 

Martin, No. 1:07-cv-76, 2010 WL 748215, at *1 (W.D. Mich. March 1, 2010) 

(other citations omitted). Legal conclusions “are reviewed de novo.” Stryker

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Corp., 2015 WL 4425947, at *1 (citing United States v. Curtis, 237 F.3d 598, 607 

(6th Cir. 2001)).6

ARGUMENT

In finding that the costs associated with producing data for the limited sixmonth period were not “insubstantial” and effectively shifting those costs to the 

Plaintiffs, without considering Rule 26(B)(2)(iii), or analyzing and applying the 

widely adopted and accepted factors enunciated and applied in Zubulake ,the 

Court’s Order is clearly erroneous and contrary to law. See Zubulake v. UBS 

Warburg LLC, 216 F.R.D. 280 (S.D.N.Y. 2003). Plaintiffs respectfully request that 

the Court adopt the Plaintiffs’ objection and order UPS to produce the packagespecific data from June 30-December 29, 2013, in the event the parties cannot 

negotiate and stipulate to a less costly sampling that would be deemed both 

admissible and adequate, at UPS’s sole expense.

 

6 While the more tolerant abuse-of-discretion standard does not apply to this 

objection, it is illustrative to note that it is an abuse of discretion for a court to fail 

to apply a governing standard to a discretionary standard. Hamilton’s Bogarts, Inc. 

v. Michigan, 501 F.3d 644, 649 (6th Cir. 2007) (an abuse of discretion exists when 

a ruling “relied upon clearly erroneous findings of fact, improperly applied the 

governing law, or used an erroneous legal standard.”) (internal citations and 

quotations omitted); Beacon Journal Publishing Co., Inc. v. Blackwell, 389 F.3d 

683, 685-85 (6th Cir. 2004) (“[w]hile clearly erroneous fact-finding constitutes 

abuse of discretion, so, too, does the improper application of governing law.”) 

(citing Blue Cross & Blue Shield Mut. v. Blue Cross and Blue Shield Ass’n, 110 

F.3d 318, 322 (6th Cir. 1997)).

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I. There is No Evidence Sufficient To Overcome The Legal 

Presumption That The Producing Party Bears Its Own Costs Of

Production Absent Demonstrated Undue Burden. 

Cost-shifting should be considered only when electronic discovery imposes 

an “undue burden or expense” on the responding party. The responding party, here 

UPS, “must bear the expense of complying with discovery requests” unless it 

demonstrates “undue burden or cost.” See Fed R. Civ. P. 26(2)(B); CasonMerenda v. Detroit Med. Ctr., No. 06-15601, 2008 WL 2714239, at *3 (E.D. Mich. 

July 7, 2008) (citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978)); 

U.S. ex rel. Guardiola v. Renown Health, No. 3:12-cv-00295, 2015 WL 5056726, 

at *9 (D. Nev. Aug. 25, 2015) (“the presumption is that the responding party must 

bear the expense of complying with discovery requests[,]”) (quoting Oppenheimer, 

437 U.S. at 358). Furthermore, “[a]ny principled approach to electronic evidence 

must respect this presumption.” Guardiola, 2015 WL 5056726, at *9 (citing 

Zubulake 217 F.R.D. at 317-18). Accordingly, “[a]bsent a specific objection, party 

agreement, or court order, the reasonable costs of retrieving and reviewing 

electronically stored information should be borne by the responding party.” CasonMerenda, 2008 WL 2714239, at *4 (quoting The Sedona Principles: Second 

Edition, June 2007);

7

Guardiola, 2015 WL 5056726, at *9 (citation omitted). 

 

7 The Sedona Principles have been cited favorably by the Sixth Circuit. See John B. 

v. Goetz, 531 F.3d 448, 459 (6th Cir. 2008). See also Laethem Equip. Co. v. Deere 

& Co., 261 F.R.D. 127, 145 (E.D. Mich. 2009). 

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“[C]lose calls should be resolved in favor of the presumption.” Zubulake, 217 

F.R.D. at 320.

Here, Plaintiffs are simply requesting that, initially, the Court order 

production of the “highly” relevant data from the limited six-month period from

June 30, 2013, to December 29, 2013. There is no evidence in the record 

discussing the costs associated with this limited production. The Court’s finding 

that the cost of production is “not insubstantial” is, respectfully, without basis. 

Furthermore, the finding alone that the cost of production is not insubstantial 

does not equate to a finding of “undue burden” and is not sufficient to overcome 

“the presumption that that the responding party must bear the expense of 

complying with discovery requests.” Guardiola, 2015 WL 5056726, at *9. In 

determining whether the expense of production amounts to an undue burden, a 

court must evaluate the cost of production in comparison with the amount in 

controversy.8

 Here, there is no consideration of an amount in controversy, and 

consequently, any estimated cost of production is a numerator in search of a 

 

8 See, e.g., Guardiola, 2015 WL 5056726, at *10 (“‘[a] response to a discovery 

request costing $100,000 sounds (and is) costly, but in a case potentially worth 

millions of dollars, the cost ... may not be unduly burdensome.’” (quoting 

Zubulake, 217 F.R.D. at 321).

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denominator – by itself, it cannot be assigned its appropriate weight in the “undue 

burden” analysis.

II. The Court Erroneously Shifted The Costs Of Production To 

Plaintiffs Without Any Mention Of The Zubulake Factors.

The Opinion and Order is contrary to law because it improperly, but 

effectively, shifted the entire cost of production to Plaintiffs without any discussion 

of the seven cost-shifting factors enunciated in Zubulake, the seminal case law for 

cost-shifting ESI discovery. The Zubulake factors are considered the “gold 

standard” in evaluating cost-shifting ESI discovery disputes, and have been 

approved and adopted in the Sixth Circuit. See, e.g., Guardiola, 2015 WL 

5056726, at *2 (quoting Tierno v. Rite Aid Corp., No. C-05-02520, 2008 WL 

3287035, at *4 (N.D. Cal. July 31, 2008)); Laethem Equip. Co., 261 F.R.D. at 145;

Cason-Merenda, 2008 U.S. Dist. LEXIS 51962, at *11. The failure to consider the 

Zubalake factors alone renders the Order and Opinion contrary to law.

III. An Analysis Of The Zubulake Factors Does Not 

Support Cost-Shifting to Plaintiffs.

An application of the Zubulake factors as they pertain to this case does not 

support shifting the costs of production to the Plaintiffs. Zubulake “held that 

courts should consider seven factors in the cost-shifting analysis, weighted in the 

following order” and an analysis of each factor clearly weighs in favor of the 

Plaintiffs. Guardiola, 2015 WL5056726, at *10 (citing Zubulake, 217 F.R.D. at 

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324); see also Stryker Corp., 2015 WL 4425947, at *1 (citing Zubulake, 217 

F.R.D. at 322).

The first Zubulake factor is “the extent to which the request is specifically 

tailored to discover relevant information.” In reference to this factor, Plaintiffs 

targeted the definition of qualifying shipments to their claims. Moreover, the 

Order itself held that data the six-month period at issue has a “high degree of 

relevance.” ECF No. 89 at 6.

The second Zubulake factor concerns the availability of the requested data 

from other sources, and here it is clear that the data is proprietary and only 

available from UPS. Indeed, UPS concedes that its backup tape systems are the 

only source for this information. See ECF No. 50 at 2, 8. Furthermore, because 

UPS admits that this proprietary data is only available from its records, there is 

simply no other source. The requested data is part of UPS’s core business, which 

develops, implements, and maintains computer systems, software, and data to bill 

each of its customers for declared value coverage.

The third Zubulake factor concerns the total cost of production for the six 

months of data, compared to the amount in controversy. Only UPS has the 

information to determine the total amount in controversy, and as noted previously, 

the Court failed to recognize the amount in controversy as a factor. Given that UPS 

shipped 16.3 million packages per day worldwide in 2012, however, Solo, 819 

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F.3d 788, 791, the amount in controversy is likely to be in the tens of millions of 

dollars. 

The fourth Zubulake factor is a comparison of the resources available to 

each party, and it is clear that the resources available to UPS (a company with over 

$50 billion in annual revenue) far exceeds the Plaintiffs’ resources: an individual 

and a small Ohio company with approximately 50 employees. 

The fifth Zubulake factor is the relative ability of each party to control costs 

and its incentive to do so. This factor also favors the Plaintiffs: UPS will be 

responsible for the limited production, can control its costs, and has the incentive 

to do so.9

 As discussed, infra, UPS could have retained this data when the prior 

lawsuits were filed in December 2013, but it chose not to do so.10

The sixth Zubulake factor concerns the importance of the issues at stake in 

the litigation. The Order acknowledges that the information requested is “highly 

 

9 The Order provides UPS with no incentive whatsoever to agree on a valid 

sampling methodology. Instead, it creates exactly the opposite incentive (since 

UPS would be “penalized” by having to pay 50% of the costs of any sampling). In 

addition, current technology frequently enables parties to index and extract data 

from backup tapes without the need to “restore” the tapes – UPS thus has much 

more ability to control its costs to obtain the six months of data, but has no 

incentive to do so if Plaintiffs are ordered to pay 100% of its costs.

10 “The obligation to preserve evidence arises when the party has notice that the 

evidence is relevant to litigation or when a party should have known that the 

evidence may be relevant to future litigation.” Helmert, No. 4:08-cv-00342, 2010 

WL 2179180, at *8 (citing Zubulake, 220 F.R.D. at 216 (other citations omitted)).

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relevant,” and clearly important to the issues at stake in the litigation. The subject 

data would demonstrate the class of shipments encompassed by Plaintiffs’ breach 

of contract and unjust enrichment claims. UPS did not challenge at oral argument 

Plaintiffs’ representation to the Magistrate Judge that counsel for UPS effectively 

disavowed UPS’s own estimate for most litigation purposes, by refusing to 

acknowledge that that estimate would be admissible, much less adequate to sustain 

a jury verdict. See Reply Brief In Support of Motion to Compel, ECF No. 55, at 11.

The seventh (and therefore least weighted) Zubulake factor concerns the 

relative benefits to the parties of obtaining the information. Here, the information 

is important to the Plaintiffs to determine scope of the case, and will help quantify 

the amounts in controversy—a factor that is important to all parties, and may 

facilitate settlement discussions and resource allocation decisions. Accordingly, 

this factor, too, militates against cost shifting.

Each Zubulake factor favors the Plaintiffs. A proper analysis and evaluation 

of all the Zubulake factors clearly demonstrates that the burden of production 

should not be shifted to them.

IV. UPS Converted The Data Into An Inaccessible Format 

After It Was Reasonably Foreseeable That It Was Relevant.

As discussed previously, the data that is the subject of this Objection (from 

the period June 30-December 29, 2013) was “live” data when UPS was placed on 

notice of this litigation, and therefore it was reasonably foreseeable that the data

Case 2:14-cv-12719-DPH-RSW ECF No. 93 filed 01/24/17 PageID.2394 Page 20 of 23
15

would be subject to discovery. Despite the likelihood that the data would be 

subject to discovery, UPS decided to change the file format of the data and reduce 

its accessibility.

[I]f a party creates its own burden or expense by converting into an 

inaccessible format data that it should have reasonably foreseen would be 

discoverable material at a time when it should have anticipated litigation, 

then it should not be entitled to shift the costs of restoring and searching 

the data. This would permit parties to maintain data in whatever format 

they choose, but discourage them from converting evidence to 

inaccessible formats because the party responsible for the conversion will 

bear the cost of restoring the data. Furthermore, it would prevent parties 

from taking unfair advantage of a self-inflicted burden by shifting part of 

the costs of undoing the burden to an adversary.

Quinby v. West LB AG, 245 F.R.D. 94, 104 (S.D.N.Y. 2006); see also Sedona 

Principles on Proportionality.

UPS created an additional expense by archiving the live data for June 30-

December 29, 2013, shipments when it was reasonably foreseeable that this data 

would be subject to discovery in this litigation. The burden of retrieving that data 

should therefore fall on UPS – and not the Plaintiffs – for this additional reason.

CONCLUSION

For the aforementioned reasons, the Opinion and Order is clearly erroneous 

and contrary to law, Plaintiffs’ specific Objection should be adopted, and the 

Defendant ordered to produce the package-specific data for the period June 30, 

2013, to December 29, 2013, at its sole expense.

Case 2:14-cv-12719-DPH-RSW ECF No. 93 filed 01/24/17 PageID.2395 Page 21 of 23
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Dated: January 24, 2017 Respectfully submitted,

Andrew J. McGuinness (P42074)

ANDREW J. MCGUINNESS, ESQ.

122 S. Main St., Suite 118

P.O. Box 7711

Ann Arbor, MI 48107

Phone: (734) 274-9374

Elizabeth McKenna

Charles Slidders

MILBERG LLP

One Pennsylvania Plaza, 50th Floor

New York, NY 10119

Phone: (212) 594-5300

emckenna@milberg.com

cslidders@milberg.com

Daniel R. Karon (admitted)

Beau D. Hollowell

KARON LLC

700 W. St. Clair Ave., Suite 200

Cleveland, OH 44113

Phone: (216) 622-1851

Counsel for Plaintiffs and Proposed Class

Case 2:14-cv-12719-DPH-RSW ECF No. 93 filed 01/24/17 PageID.2396 Page 22 of 23
CERTIFICATE OF SERVICE

The undersigned, an attorney, hereby certifies that on the above date a copy 

of the foregoing was filed with the Court using the ECF system, which will send 

notification of such filing to all parties who have appeared through their attorneys 

of record.

/s/ Andrew J. McGuinness

Case 2:14-cv-12719-DPH-RSW ECF No. 93 filed 01/24/17 PageID.2397 Page 23 of 23