Decided May 13, 2003 By the United States Court for the Southern District of New York

Parties  Plaintiff- Laura Zubalake (former director and senior salesperson on the UBS Warburg U.S. Asian Equities Sales Desk)  Defendant- UBS Warburg LLC (Plaintiff’s employer)

Facts  UBS hired Z to work at its U.S. Asian Equities Sales Desk reporting to Dominic Vail.  Z claims she was told that she would be considered for Vail’s job were he to leave.  Vail did leave and Z was not considered. Matthew Chapin was hired instead.  Z filed a Gender Discrimination complaint with the EEOC based on Vail’s activities (i.e. ridiculing her, excluding her from outings, and making sexist remarks in her presence) and is suing for gender discrimination and illegal retaliation.  UBS’s (hilarious) response is that Vail treated everyone equally badly and did not limit his offensiveness to women.  In the course of discovery Z requested “all documents by or between UBS employees concerning Plaintiff... Including... Electronic or computerized data compilations.”  UBS agreed to produce s from five named individuals, and insisted that its initial production of 100 s was complete.  Z argued that UBS must search its back-up tapes to find additional relevant s. UBS objected to this based on the cost and asked for cost shifting.

What E-Discovery Rules are Implicated?  Federal Rule of Civil Procedure 26(b)(1) “Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any non- privileged matter that is relevant to any party's claim or defense.”  Federal Rule of Civil Procedure 26(b)(2)(C) “On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.”

E-Discovery Analysis Plaintiff Zubulake’s Argument Defendant UBS’s Argument  Z is entitled to discovery.  Z limited her request to specific individuals’ that are likely to be applicable to the litigation.  UBS controls the records and must bear the cost of recovery.  Acknowledges Z is entitled to request s as part of discovery.  Asks Court to shift costs to prevent undue financial burden.

Issues Regarding E-Discovery  The Rowe “8 factor test” to determine when cost- shifting should take place generally favors cost- shifting.  The Rowe test does not include “amount in controversy” or “the importance of issues at stake.”  The Rowe factor evaluating the specificity of the discovery request, should be changed to “the extent to which the request is specifically tailored to discover relevant information.”  The Rowe factor considering “the purposes for which the responding party maintains the requested data” is eliminated. If it is there and relevant it is discoverable.

Conclusion  Court must conduct 3 step analysis: (A) Fully understand the data storage systems, but recognize in general the responding party must pay the costs of discovery (B) The court should order a sample restoration. (C) Court should consider the following factors in weighted order: 1.) extent to which request is specifically tailored 2.) availability of such information from other sources 3.) Cost of production v. amount in controversy 4.) Cost of production v. each parties resources 5.) Relative ability of each party to control costs 6.) Importance of issues at stake 7.) Relative benefits to the party of obtaining the information. UBS is ordered to produce all relevant s from its easily accessed storage (i.e. optical discs, or active servers) and any responsive s from five back up tapes selected by Zubulake and prepare an affidavit detailing the results and time or money spent.

Class Discussion Questions  Does basing the Cost Shifting on a Cost/Benefit analysis incent defendants (especially large, complex corporations) to improve or complicate their data storage and retrieval systems?  What is the probability that a Plaintiff could use discovery requests as an offensive weapon?