Zubulake v. UBS Warburg LLC 217 F.R.D. 309 (S.D.N.Y. 2003), 236 United States District Court for the Southern District of New York

Zubulake 1 - The Parties  Laura Zubulake  Suing UBS for gender discrimination and retaliation under both Federal Title VII and New York State and New York City law  Laura Zubulake  Suing UBS for gender discrimination and retaliation under both Federal Title VII and New York State and New York City law

Zubulake 1 - The Parties  Laura Zubulake  Suing UBS for gender discrimination and retaliation under both Federal Title VII and New York State and New York City law  UBS Warburg LLC  Argued that there was no discrimination, resisted requests for electronic data  Laura Zubulake  Suing UBS for gender discrimination and retaliation under both Federal Title VII and New York State and New York City law  UBS Warburg LLC  Argued that there was no discrimination, resisted requests for electronic data

Zubulake I and the Federal Rules of Civil Procedure  Rule 26(b)(1)  Broad discovery, structured to allow “the parties to obtain the fullest possible knowledge of the issues and facts before trial.” Zubulake 217 F.R.D. at 316  Rule 26(b)(1)  Broad discovery, structured to allow “the parties to obtain the fullest possible knowledge of the issues and facts before trial.” Zubulake 217 F.R.D. at 316

Zubulake I and the Federal Rules of Civil Procedure  Rule 26(b)(1)  Broad discovery, structured to allow “the parties to obtain the fullest possible knowledge of the issues and facts before trial.” Zubulake 217 F.R.D. at 316  Except where protected by privilege, allow discovery regarding any matter relevant to the litigation. Id.  Rule 26(b)(1)  Broad discovery, structured to allow “the parties to obtain the fullest possible knowledge of the issues and facts before trial.” Zubulake 217 F.R.D. at 316  Except where protected by privilege, allow discovery regarding any matter relevant to the litigation. Id.

Zubulake and the Federal Rules of Civil Procedure  Rule 26(b)(2)  Tempers the broad discovery mandate of 26(b)(1)  Rule 26(b)(2)  Tempers the broad discovery mandate of 26(b)(1)

Zubulake and the Federal Rules of Civil Procedure  Rule 26(b)(2)  Tempers the broad discovery mandate of 26(b)(1)  “imposes general limitations on the scope of discovery in the form of a ‘proportionality test’” Zubulake 217 F.R.D. at 316  Rule 26(b)(2)  Tempers the broad discovery mandate of 26(b)(1)  “imposes general limitations on the scope of discovery in the form of a ‘proportionality test’” Zubulake 217 F.R.D. at 316

The Rule 26(b)(2) Proportionality Test  Discovery otherwise permitted by the Rules may be limited by the court if it determines:

The Rule 26(b)(2) Proportionality Test  Discovery otherwise permitted by the Rules may be limited by the court if it determines:  (I) discovery would be unreasonably duplicative, or is obtainable from some less burdensome source  Discovery otherwise permitted by the Rules may be limited by the court if it determines:  (I) discovery would be unreasonably duplicative, or is obtainable from some less burdensome source

The Rule 26(b)(2) Proportionality Test  Discovery otherwise permitted by the Rules may be limited by the court if it determines:  (I) discovery would be unreasonably duplicative, or is obtainable from some less burdensome source  (ii) the party seeking discovery has had ample opportunity by discovery to obtain the information sought  Discovery otherwise permitted by the Rules may be limited by the court if it determines:  (I) discovery would be unreasonably duplicative, or is obtainable from some less burdensome source  (ii) the party seeking discovery has had ample opportunity by discovery to obtain the information sought

The Rule 26(b)(2) Proportionality Test  Discovery otherwise permitted by the Rules may be limited by the court if it determines:  (I) discovery would be unreasonably duplicative, or is obtainable from some less burdensome source  (ii) the party seeking discovery has had ample opportunity by discovery to obtain the information sought  (iii) the burden of discovery outweighs the likely benefit  Discovery otherwise permitted by the Rules may be limited by the court if it determines:  (I) discovery would be unreasonably duplicative, or is obtainable from some less burdensome source  (ii) the party seeking discovery has had ample opportunity by discovery to obtain the information sought  (iii) the burden of discovery outweighs the likely benefit

Zubulake I and the Federal Rules of Civil Procedure  Rule 34  Parties may request discovery of any document  Rule 34  Parties may request discovery of any document

Zubulake I and the Federal Rules of Civil Procedure  Rule 34  Parties may request discovery of any document  Term “document” applies equally to electronic documents:  “This is true not only of electronic documents that are currently in use, but also of documents that may have been deleted and now reside only on backup disks” Zubulake 217 F.R.D. at 317  Rule 34  Parties may request discovery of any document  Term “document” applies equally to electronic documents:  “This is true not only of electronic documents that are currently in use, but also of documents that may have been deleted and now reside only on backup disks” Zubulake 217 F.R.D. at 317

The Electronic Discovery Issues  Was Zubulake entitled to discovery of the electronic information possessed by UBS?

The Electronic Discovery Issues  Was Zubulake entitled to discovery of the electronic information possessed by UBS?  More importantly, if so, who pays?  Was Zubulake entitled to discovery of the electronic information possessed by UBS?  More importantly, if so, who pays?

Zubulake Entitled to Discovery of the UBS Electronic Data  Rule 34 definition of documents includes electronic media Zubulake 217 F.R.D. at 317

Zubulake Entitled to Discovery of the UBS Electronic Data  Rule 34 definition of documents includes electronic media Zubulake 217 F.R.D. at 317  Evidence that UBS had data relevant to the case:  Could not have searched s it had not already restored  Zubulake had s indicating UBS had not made all of their relevant data available Id.  Rule 34 definition of documents includes electronic media Zubulake 217 F.R.D. at 317  Evidence that UBS had data relevant to the case:  Could not have searched s it had not already restored  Zubulake had s indicating UBS had not made all of their relevant data available Id.

Who Should Pay? Cost Shifting and Electronic Discovery  UBS estimated the cost of restoring the requested messages at $300,000 Zubulake 217 F.R.D. at 313

Who Should Pay? Cost Shifting and Electronic Discovery  UBS estimated the cost of restoring the requested messages at $300,000 Zubulake 217 F.R.D. at 313  UBS argued that Zubulake should shoulder the cost of production to “protect it from undue burden or expense.” Id. at 317  UBS estimated the cost of restoring the requested messages at $300,000 Zubulake 217 F.R.D. at 313  UBS argued that Zubulake should shoulder the cost of production to “protect it from undue burden or expense.” Id. at 317

Who Should Pay? Cost Shifting and Electronic Discovery  “whether production of documents is unduly burdensome or expensive turns primarily on whether it is kept in an accessible or inaccessible format Zubulake 217 F.R.D. at 318

Who Should Pay? Cost Shifting and Electronic Discovery  “whether production of documents is unduly burdensome or expensive turns primarily on whether it is kept in an accessible or inaccessible format Zubulake 217 F.R.D. at 318  Accessibility in turn depends “largely on the media on which it is stored.” Id.  “whether production of documents is unduly burdensome or expensive turns primarily on whether it is kept in an accessible or inaccessible format Zubulake 217 F.R.D. at 318  Accessibility in turn depends “largely on the media on which it is stored.” Id.

Accessibility of Electronic Data  Difficult Access  Erased, Fragmented, or Damaged Data  Backup Tapes  Majority of UBS data contained in this format  Offline Storage/Archives  Difficult Access  Erased, Fragmented, or Damaged Data  Backup Tapes  Majority of UBS data contained in this format  Offline Storage/Archives  Readily Accessible  Near-Line Data  Active/On-line data  Most readily accessible

Seven Factor Cost-Shifting Analysis  1. The extent to which the request is specifically tailored to discover relevant information

Seven Factor Cost-Shifting Analysis  1. The extent to which the request is specifically tailored to discover relevant information  2. The availability of such information from other sources  1. The extent to which the request is specifically tailored to discover relevant information  2. The availability of such information from other sources

Seven Factor Cost-Shifting Analysis  1. The extent to which the request is specifically tailored to discover relevant information  2. The availability of such information from other sources  3. The total cost of production, compared to the amount in controversey  1. The extent to which the request is specifically tailored to discover relevant information  2. The availability of such information from other sources  3. The total cost of production, compared to the amount in controversey

Seven Factor Cost-Shifting Analysis  4. The total cost of production, compared to the resources available to each party

Seven Factor Cost-Shifting Analysis  4. The total cost of production, compared to the resources available to each party  5. The relative ability of each party to control costs and its incentive to do so  4. The total cost of production, compared to the resources available to each party  5. The relative ability of each party to control costs and its incentive to do so

Seven Factor Cost-Shifting Analysis  4. The total cost of production, compared to the resources available to each party  5. The relative ability of each party to control costs and its incentive to do so  6. The importance of the issues at stake in the litigation  4. The total cost of production, compared to the resources available to each party  5. The relative ability of each party to control costs and its incentive to do so  6. The importance of the issues at stake in the litigation

Seven Factor Cost-Shifting Analysis  4. The total cost of production, compared to the resources available to each party  5. The relative ability of each party to control costs and its incentive to do so  6. The importance of the issues at stake in the litigation  7. The relative benefits to the parties of obtaining the information  Zubulake 217 F.R.D. at 322  4. The total cost of production, compared to the resources available to each party  5. The relative ability of each party to control costs and its incentive to do so  6. The importance of the issues at stake in the litigation  7. The relative benefits to the parties of obtaining the information  Zubulake 217 F.R.D. at 322

Resolution  Court ordered UBS to restore 5 backup tapes, selected by Zubulake, to determine the cost of restoration  Once the sample data was available, the court would determine the proper cost- shifting arrangement Zubulake 217 F.R.D. at 324  Court ordered UBS to restore 5 backup tapes, selected by Zubulake, to determine the cost of restoration  Once the sample data was available, the court would determine the proper cost- shifting arrangement Zubulake 217 F.R.D. at 324

Questions  Is cost-shifting fair when there is such a disparity of resources between the parties?  Should you encourage clients to simply keep more data in an online or near-online state?  Is cost-shifting fair when there is such a disparity of resources between the parties?  Should you encourage clients to simply keep more data in an online or near-online state?