The heart of the dispute was succinctly recited by the court as follows:
“This case provides a textbook example of the difficulty of balancing the competing needs of broad discovery and manageable costs. Laura Zubulake is suing [the defendants] under Federal, State and City law for gender discrimination and illegal retaliation. Zubulake’s case is certainly not frivolous and if she prevails, her damages may be substantial. She contends that key evidence is located in various e-mails exchanged among UBS employees that now exist only on backup tapes and perhaps other archived media. According to UBS, restoring those e-mails would cost approximately $ 175,000.00, exclusive of attorney time in reviewing the e-mails. Zubulake now moves for an order compelling UBS to produce those e-mails at its expense.”
After concluding that discovery of UBS’s electronic data was permissible because the emails were relevant to Zubulake’s claims, the court considered whether cost-shifting was appropriate under a modified version of the Rowe test. The conclusion section of the opinion provides the framework for analyzing a dispute of this type:
“First, it is necessary to thoroughly understand the responding party’s computer system, both with respect to active and stored data. For data that is kept in an accessible format, the usual rules of discovery apply: the responding party should pay the costs of producing responsive data. A court should consider cost-shifting only when electronic data is relatively inaccessible, such as in backup tapes.
Second, because the cost-shifting analysis is so fact-intensive, it is necessary to determine what data may be found on the inaccessible media. Requiring the responding party to restore and produce responsive documents from a small sample of the requested backup tapes is a sensible approach in most cases.
Third, and finally, in conducting the cost-shifting analysis, 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.”
The court ordered production by UBS of emails from two sources that were easily accessible. A third source (backup tapes) were less accessible and the court ordered a sample production from five of the ninety-four tapes to compile a factual basis for a thorough cost-shifting analysis.
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The full text is available at http://www.ediscoverylawalert.com…