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Zubulake v. UBS Warburg LLC - 216 F.R.D. 280 (S.D.N.Y. 2003)


In order to determine whether cost-shifting is appropriate for the discovery of inaccessible data, the following factors should be considered, weighted more-or-less in the following order: 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 controversy; 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; and 7). the relative benefits to the parties of obtaining the information.


Plaintiff Laura Zubalake, an equities trader who earned approximately $650,000 a year with defendants UBS Warburg LLC (UBS) sued the latter for gender discrimination, failure to promote, and retaliation under federal, state, and city law. To support her claim, Zubulake sought evidence stored on UBS's backup tapes that was only accessible through costly and time-consuming data retrieval. UBS was then ordered to restore and produce certain e-mails from a small group of backup tapes. Having reviewed the results of this sample restoration, Zubulake moved for an order compelling UBS to produce all remaining backup e-mails at its expense. UBS argues that based on the sampling, the costs should be shifted to Zubulake.


Should the costs of the data retrieval be shifted to Zubulake?


Yes, partly.


The Court held that it would shift one quarter of the cost of any further production concerning the computer backup tapes requested under Fed. R. Civ. P. 34(a) to Zubulake pursuant to Fed. R. Civ. P. 26(b)(2) and (c). The Court found that Zubulake demonstrated that the marginal utility of the backup tapes was potentially high; that the cost of restoration was not significantly disproportionate to the projected value of the case; that Zubulake probably had the financial wherewithal to cover at least some of the cost of restoration; and that, although Zubulake did not show that there was indispensable evidence on the backup tapes, there was plainly relevant evidence that was only available on the backup tapes.

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