E-Discovery Basics: Zubulake III

This week, I briefly continue my discussion of the Zubulake case, one of the most significant electronic discovery case of the 2000s.

Here's a brief recap: Laura Zubulake sued her employer (UBS) on grounds of gender discrimination. She asked for UBS emails relevant to her case. UBS said that emails relevant to the case were available only on back-up tapes, and claimed that it would be expensive to recover these emails. Judge Scheindlin, the federal court judge in the case, instructed UBS to restore a sample of back-up tapes, so that the judge could make a decision on whether to shift the costs from the defendants (UBS) to the plaintiff (Zubulake).

The judge's third decision in the case (known as Zubulake III) was released in July 2003, a couple of months after her first decision.
She applied her cost-shifting analysis and its seven-factor test (discussed in last week's post here), and decided that the plaintiff (Zubulake) would pay 25% of the costs of restoring the back-up tapes, while the defendant (UBS) would pay 75%.

However, it is important to remember that the restoration costs were much smaller than the costs of reviewing the emails to see what was there: UBS spent a lot of money to pay attorneys to look over the documents restored from the back-up tapes. The judge said that because UBS had control over these costs, it was responsible for all of them.

Zubulake III is interesting because the judge decided to shift some of the restoration costs to the plaintiff, but not the costs of reviewing the restored emails.

Next week, I'll continue my discussion of the case by looking at Zubulake IV, and hopefully, the last in the series, Zubulake V!

(Zubulake III is cited as: Zubulake v. UBS Warburg, 216 F.R.D. 280 (S.D.N.Y. 2003))