Saturday, December 28, 2013

Zubulake v. UBS Warburg LLC (Zubulake I) case brief

Zubulake v. UBS Warburg LLC (Zubulake I) case brief summary
217 F.R.D. 309 (May 13, 2003)

Plaintiff employee sued defendant, her former employer, under federal, state and city law for gender discrimination and illegal retaliation. She claimed that key evidence was located in various e-mails exchanged among employees that now existed only on backup tapes and perhaps other archived media. The employee moved for an order compelling the employer to produce those e-mails at its expense.

The present case provided a textbook example of the difficulty of balancing the competing needs of broad discovery and manageable costs. According to the employer, restoring certain e-mails would cost approximately $ 175,000.00, exclusive of attorney time.


  • The court held that deciding disputes regarding the scope and cost of discovery of electronic data required a three-step analysis: First, it was necessary to thoroughly understand the responding party's computer system, both with respect to active and stored data. 
  • For data that was kept in an accessible format, the usual rules of discovery applied: the responding party should pay the costs of producing responsive data. 
  • A court should consider cost-shifting only when electronic data was relatively inaccessible, such as in backup tapes. 
  • Second, because the cost-shifting analysis was so fact-intensive, it was necessary to determine what data could be found on the inaccessible media. 
  • This required the responding party to restore and produce responsive documents from a small sample of the requested backup tapes. 
  • Third, for the cost-shifting analysis, the court provided a weighted list of factors to be considered.

The employer was ordered to produce all responsive e-mails that existed on its optical disks or on its active servers at its own expense. The employer was also ordered to produce, at its expense, responsive e-mails from any five backups tapes selected by the employee.

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