Zubulake v UBS - as found in book PDF

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Zubulake v. UBS Warburg US District Court for the Southern District of N.Y. 2003 Facts: Laura Zubulake (plaintiff) filed a complaint with the Equal Employment Opportunity Commission alleging gender discrimination and retaliatory firing by UBS Warburg LLC (UBS) (defendant). Zubulake sued in the United States District Court for the Southern District of New York under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII), New York state law, and New York City administrative regulations. During discovery, Zubulake requested all documents in which UBS employees discussed Zubulake, including “electronic or computerized data compilations.” UBS objected, but produced 100 pages of emails. The parties agreed in a conference with a magistrate that UBS would produce “responsive emails if…possible” for individuals named by Zubulake, but UBS later asserted that its initial production fulfilled the agreement. UBS did not search backup tapes and claimed that the cost to do so would be about $300,000. Zubulake objected and produced 450 pages of emails. In deposition, a UBS employee testified that emails covered by the request were copied periodically and stored on 94 backup tapes, which are costly and time-consuming to restore, and that the external emails of registered traders are stored on optical disks. Zubulake seeks production of all remaining emails at UBS’s expense, and UBS argues that discovery is complete or that the costs should be shifted to Zubulake under Rule 26(c) of the Federal Rules of Civil Procedure (FRCP). Rule: The scope and cost of discovery of electronic data requires a three-part analysis: 1. Thoroughly understand responding party’s computer system, with respect to accessible and inaccessible data. a. A court should consider cost-shifting only when the data is relatively inaccessible, such as in backup tapes. 2. Determine what data may be found in the inaccessible medium- maybe requiring them to produce a small sample will bring this to light. 3. Consider the Rowe Factors: a. Extent to which the request is specifically tailored to discover relevant information b. Availability of such information from other sources c. Total cost of production, compared to the amount on controversy d. Total cost of production, compared to the resources available to each party e. The relative ability of each party to control costs and its incentives to do so f. Importance of the issues at stake in the litigation g. Relative benefits to the parties obtaining the information Holding: -UBS is ordered to produce all responsive e-mails that exist on its optical disks or on its servers at its own expense. -UBS is also ordered to produce, at its expense, responsive e-mails from any five backup tapes selected Zubulake.

-UBS should then prepare an affidavit detailing the results of its search, as well as the time and money spent. -After reviewing the contents of the backup tapes and UBS’s certification, the court will conduct appropriate cost-shifting analysis....