Transcript Zubulake v. UBS Warburg LLC “Zubulake III” 216 F.R.D. 280

Zubulake v. UBS Warburg LLC
“Zubulake III”
216 F.R.D. 280 (S.D.N.Y 2003)
Ross W. Radish
Parties Involved
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Zubulake
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Filed suit against UBS for gender
discrimination, failure to promote, and
retaliation.
In “Zubulake I” she succeed in receiving
a court order for USB to produce 5 of 94
back up tapes.
UBS
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Company has already produced
contents of some back up tapes.
Allegedly Zubulake’s supervisor
ridiculed her in front of employees,
excluded her from work-related outings,
and made sexist remarks.
Facts
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UBS has already produced 5 of 94
back up tapes at a cost of
approximately $19,000.
Zubulake has moved to have the
remainder of the tapes restored.
UBS is moving to have the fees of
any further restoration shifted to
Zubulake.
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Cost estimate is $273,000.
eDiscovery Legal Framework
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Fed. R. Civ. Pro.
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Rule 26(b)(2) – allowing for
shifting of cost of discovery if good
cause can be shown.
UBS has the burden of showing good
cause for motion
 Court will evaluate request using 7
factors developed in Zubulake I to
determine if cost-shifting is
appropriate.
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Analysis
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Extent to which request is specifically
tailored to discovery of relevant
information.
Availability of info from other sources.
Total cost of production v. amount in
controversy.
Cost of production relative to resources
available to each party.
Ability of each party to control cost and
incentive to do so.
Importance of issues at stake in litigation.
Relative benefits of parties obtaining
information.
Issues in eDiscovery
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Is cost-shifting appropriate?
Accessibility of information?
Ability to make specific requests
for relevant information to
minimize costs.
Resources of parties to produce
information.
Conclusion
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UBS is responsible for 75% of
restoration and Zubulake is
responsible for 25%.
Applicable only to cost of restoring
data and not review of retrieved
data.
 Cost-shifting only applies to
inaccessible data.
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Discussion
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Why does the court only consider
shifting the cost of the restoration of
inaccessible data and not the cost of
review of retrieved data.
Would it have been more appropriate
to wait until the conclusion of the
case before shifting-costs.
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If Zubulake prevails why should she
have to pay?