1. Zubulake Overview  The Zubulake opinions are from the U.S. District Court for the Southern District of New York. U.S. District Judge Shira A. Scheindlin  This case involved a typical gender discrimination and retaliation claim, which sparked a lengthy dispute concerning the discovery of certain emails.

2. Zubulake I Zubulake I discussed three important issues regarding e- discovery: 1.Whether discovery of electronic data is permitted; 2.Whether the cost of production of electronic data should be shifted to the requesting party; and 3.What is the proper cost shifting test?

3. Zubulake I – Discovery of Electronic Data  The court is Zubulake I first determined that electronic data is as discoverable as a paper record.  In reaching this conclusion, the court focused on FRCP 34 (a party may request discovery of “any” document).  In this case, the plaintiff was therefore entitled to discovery of the requested emails.

4. Zubulake I – Is Cost Shifting Applicable?  The court first noted that cost shifting need not be considered in every case. It is only to be considered when e- discovery places an “undue burden” on the responding party.  Whether production of an e-document is “unduly burdensome” depends on whether the data is typically accessible or inaccessible:  Active online data is readily accessible.  Near-line data is readily accessible.  Offline storage and archives is readily accessible.  Backup tapes are not readily accessible.  Erased, fragmented or damaged data is not readily accessible.

5. Zubulake I –Appropriate Cost Shifting Analysis The court then set forth a seven factor test for determining whether cost shifting in appropriate: 1.The extent to which the request is specifically tailored to the discovery of relevant information; 2.The availability of such information from other sources; 3.The total costs of production, compared to the amount in controversy; 4.The total cost of production, compared to the resources available to each party;

6. Zubulake I –Appropriate Cost Shifting Analysis (Contd.) 5.The relative ability of each party to control costs and their incentive to do so; 6.The importance of the issues at stake in the litigation; and 7.The relative benefits to the parties obtaining the information.  In essence, this is the proportionality test under FRCP 26(b)(2).  This test should not involve a simple mathematical exercise of merely adding up the factors.