zubulake v. ubs warburg llc 217 f.r.d. 309 (s.d.n.y. 2003), 236 united states district court for the...
DESCRIPTION
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 dataTRANSCRIPT
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
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
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
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.
Zubulake and the Federal Rules of Civil Procedure
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
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
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
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
Zubulake I and the Federal Rules of Civil Procedure
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
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?
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 emails it had not
already restored Zubulake had emails 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 email 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 email 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.
Accessibility of Electronic Data
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
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
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
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
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
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
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?