E-Discovery Basics, Part Two - Introduction to Zubulake

This post is the next installment in my survey of e-discovery basic principles.

One of the most important, and consequential, series of court decisions in the area of electronic discovery is the Zubulake v. UBS Warburg case, normally referred to simply as "Zubulake".

Zubulake is important because it deals with the question of who is responsible for paying the costs of e-discovery; the plaintiff or the defendant?

E-discovery can be very expensive. It is especially expensive when one party asks the other to hand over data, and that data is not easily accessible. For example, the data may exist only on back-up tapes, which forces the producing party to find the correct back-up tape, restore it so that the data is accessible, find the data, check to make sure the data hasn't become corrupted, make a copy of the data somewhere else, and only then begin to look at the data to see what is actually there, and what it says. All of this takes time and money, and diverts the producing party's resources away from other tasks (such as running a business). The question is: who should pay for this?

Zubulake is a series of five decisions released from 2003 through 2004 by Judge Shira Scheindlin of the U.S. District Court (a federal court) for the Southern District of New York.
Laura Zubulake sued her employer, claiming gender discrimination. She asked UBS for any emails or other documents discussing her case. UBS turned over a relatively small number of emails, while Zubulake herself produced almost five times as much email information. UBS did not search its back-up tapes or its other archives for emails related to the Zubulake matter, saying it would be a burden, and it would be expensive. UBS asked the court to shift the costs to Zubulake (and make her pay for retrieving the emails from the UBS archive).

The court considered the question of whether UBS should be required to produce relevant emails. If so, who should pay for this? Should the cost be shifted from one party to the other?

The exciting continuation of this case will be the next intallment of this blog. Stay tuned!

(For the curious, the Zubulake case is cited as Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. 2003).)