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Zubulake v. UBS Warburg LLC “Zubulake III:. 2003 Southern District of New York. Parties. Laura Zubulake She moves for an order compelling UBS to produce all remaining backup e-mails at its expense. UBS Warburg LLC

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zubulake v ubs warburg llc zubulake iii

Zubulake v. UBS Warburg LLC“Zubulake III:

2003

Southern District of New York

parties
Parties
  • Laura Zubulake
    • She moves for an order compelling UBS to produce all remaining backup e-mails at its expense.
  • UBS Warburg LLC
    • The previous sampling that was looked at shows that the discovery costs should be shifted to Zubulake
facts
Facts
  • Zubulake earned approximate $650,000/year at UBS
  • She is suing for gender discrimination, failure to promote and retaliation.
  • She seeks electronic evidence stored on UBS back-up tapes
facts cont d
Facts (cont’d)
  • Previous decision ordered the restoration of 5 back-up tapes.
  • The production of these backup tapes cost $19,003.43
  • UBS now asks that the costs to produce the remaining be shifted to Zubulake
legal framework
Legal Framework
  • Rule 26(b)(2)
    • May subject the requesting party to protective under Rule 26(c)
  • Rule 26(c)
    • Protective orders including orders conditioning discovery on the requesting party’s payment of the costs of the discovery.
  • A court will order a cost-shifting protective order only upon a motion of the responding party to a discovery request, and for good cause shown.
    • Responding party has the burden of proof
analysis
Analysis
  • Cost-shifting is appropriate when potentially inaccessible data is sought in discovery.
  • In order to determine if cost-shifting is appropriate the court applied the new 7-factor test in Zubulake I
factor one
Factor One
  • The Extent to Which the Request is Specifically Tailored to Discover Relevant Information
    • There is no sign that the emails are going to reveal evidence related to gender.
factor two
Factor Two
  • The Availability of Such Information from Other Sources
    • The contents of the emails are only available from the tapes. An email contains the precise words of the author and are a powerful form of proof at trial.
weighing factors one and two
Weighing Factors One and Two
  • Zubulake’s discovery request was narrowly tailored to discover relevant information.
  • Direct Evidence of discrimination may only be available through restoration.
  • Zubulake has demonstrated that there is probability that this evidence can be found in the email.
factor three
Factor Three
  • The Total Cost of Production Compared to the Amount in Controversy
    • This case could potentially be a multi-million dollar case so $165,954.67 it would take to restore the documents is not significantly disproportionate.
    • This factor weighs against cost shifting.
factor four
Factor Four
  • The Total Cost of Production Compared to the Resources Available to Each Party
    • UBS’s resources to pay for the restoration are much greater than Zubulakes.
    • She may be able to cover some of the cost of restoration.
    • This factor weighs against cost-shifting, but it does not rule it out.
factor five
Factor Five
  • The Relative Ability of Each Party to Control Costs and Its Incentive to Do So
    • This factor is neutral.
    • A less-expensive vendor could be found
    • Zubulake is not able to cut back on her request because of the evidence found in the sample tapes.
factor six
Factor Six
  • The Importance of the Issues at Stake in the Litigation
    • The litigation does not present a novel issue in discrimination.
    • This point is neutral.
factor seven
Factor Seven
  • The Relative Benefits to the Parties of Obtaining the Information
    • Zubulake stands to gain more than UBS.
    • Absent an order, UBS probably would never restore any of this data.
    • This factor weighs in favor of cost-shifting.
issue
Issue
  • Should the costs of retrieving inaccessible data be shifted to Zubulake?
  • Should the costs of review and production be shifted to Zubulake?
summary
Summary
  • Factors one through four weigh against cost shifting.
  • Factors five and six are neutral.
  • Factor seven favors cost-shifting.
  • Some cost-shifting is appropriate in this case.
    • There may be evidence that is only available on the tapes, but Zubulake has not shown that they contain indispensible evidence.
summary cont d
Summary (cont’d)
  • The test shows that UBS should pay the majority share, therefore Zubulake must pay less than 50%
  • Zubulake will be required to pay 25% of the costs.
costs that are affected
Costs that are Affected
  • General Rule  Cost shifting only appropriate on the costs of restoration and searching.
  • The responding party should always bear the cost of reviewing and production for two reasons.
    • Exclusive ability to control the cost of reviewing the documents.
    • Once documents are ready to be reviewed, they are no longer inaccessible.
questions
Questions
  • How should companies begin to deal with back-up tapes now? Should they reduce the amount of back-up tapes they keep to the bare minimum required?
  • How can the court evaluate the importance of the evidence before its production? Should cost-shifting be debated after the production of documents?
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