Transcript Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003)

Decided May 13, 2003
By the United States Court for the Southern District of New York
ZUBULAKE V. UBS WARBURG
LLC, 217 F.R.D. 309
(S.D.N.Y. 2003)
Parties
 Plaintiff- Laura Zubalake (former director and
senior salesperson on the UBS Warburg U.S.
Asian Equities Sales Desk)
 Defendant- UBS Warburg LLC (Plaintiff’s
employer)
Facts
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UBS hired Z to work at its U.S. Asian
Equities Sales Desk reporting to
Dominic Vail.
Z claims she was told that she would
be considered for Vail’s job were he to
leave.
Vail did leave and Z was not
considered. Matthew Chapin was
hired instead.
Z filed a Gender Discrimination
complaint with the EEOC based on
Vail’s activities (i.e. ridiculing her,
excluding her from outings, and
making sexist remarks in her
presence) and is suing for gender
discrimination and illegal retaliation.
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UBS’s (hilarious) response is that Vail
treated everyone equally badly and
did not limit his offensiveness to
women.
In the course of discovery Z requested
“all documents by or between UBS
employees concerning Plaintiff. . .
Including . . . Electronic or
computerized data compilations.”
UBS agreed to produce emails from
five named individuals, and insisted
that its initial production of 100 emails
was complete.
Z argued that UBS must search its
back-up tapes to find additional
relevant emails. UBS objected to this
based on the cost and asked for cost
shifting.
What E-Discovery Rules are
Implicated?
 Federal Rule of Civil
Procedure 26(b)(1)
“Unless otherwise
limited by court order,
the scope of discovery is
as follows: Parties may
obtain discovery
regarding any nonprivileged matter that is
relevant to any party's
claim or defense.”
 Federal Rule of Civil
Procedure 26(b)(2)(C)
“On motion or on its own, the
court must limit the frequency or
extent of discovery otherwise
allowed by these rules or by local
rule if it determines that: (iii) the
burden or expense of the
proposed discovery outweighs its
likely benefit, considering the
needs of the case, the amount in
controversy, the parties'
resources, the importance of the
issues at stake in the action, and
the importance of the discovery in
resolving the issues.”
E-Discovery Analysis
Plaintiff Zubulake’s Argument
Defendant UBS’s Argument
 Z is entitled to discovery.
 Acknowledges Z is entitled
 Z limited her request to
to request emails as part of
discovery.
 Asks Court to shift costs to
prevent undue financial
burden.
specific individuals’ email
that are likely to be
applicable to the litigation.
 UBS controls the records
and must bear the cost of
recovery.
Issues Regarding E-Discovery
 The Rowe “8 factor test” to determine when cost-
shifting should take place generally favors costshifting.
 The Rowe test does not include “amount in
controversy” or “the importance of issues at stake.”
 The Rowe factor evaluating the specificity of the
discovery request, should be changed to “the extent
to which the request is specifically tailored to
discover relevant information.”
 The Rowe factor considering “the purposes for which
the responding party maintains the requested data”
is eliminated. If it is there and relevant it is
discoverable.
Conclusion
 Court must conduct 3 step analysis:
(A) Fully understand the data storage
systems, but recognize in general the
responding party must pay the costs of
discovery
(B) The court should order a sample
restoration.
(C) Court should consider the following
factors in weighted order:
1.) extent to which request is specifically
tailored
2.) availability of such information from
other sources
3.) Cost of production v. amount in
controversy
4.) Cost of production v. each parties
resources
5.) Relative ability of each party to control
costs
6.) Importance of issues at stake
7.) Relative benefits to the party of
obtaining the information.
UBS is ordered to produce all
relevant emails from its easily
accessed storage (i.e. optical
discs, or active servers) and any
responsive emails from five back
up tapes selected by Zubulake
and prepare an affidavit
detailing the results and time or
money spent.
Class Discussion Questions
 Does basing the Cost Shifting on a
Cost/Benefit analysis incent defendants
(especially large, complex corporations) to
improve or complicate their data storage and
retrieval systems?
 What is the probability that a Plaintiff could
use discovery requests as an offensive
weapon?