239:- released on July 24, 2003 applied the cost-shifting test outlined in Zubulake I based on the sample recovery of data from five backup tapes. The Court found that the plaintiff should pay for 25 per cent of the cost of recovering the remainder of the back up tapes, as well as the cost to review the data for privileged information. The defendant was ordered pay 75 per cent of the cost of recovering the back up tapes.
245:- issued on October 22, 2003 dealt with the issue of deleted e-mails which were not saved according to the UBS retention policy and in light of the impending litigation of the plaintiff. The plaintiff was not able to show the deleted e-mails would have supported her case. The defendants were nevertheless ordered to cover costs associated with re-deposing certain witnesses.
55:') "all documents concerning any communication by or between UBS employees concerning the Plaintiff." UBS responded by providing several documents, including e-mail records totaling 100 pages, but did not search its backup tapes or other archives for responsive e-mails. The Plaintiff requested emails from UBS' optical disks, servers and backup tapes.
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towards paper free environments. As a result, in certain situations, cost-shifting may result in claims being prevented which would otherwise be valid.] The Court stated that cost-shifting for electronic discovery should be limited to situations where it poses "undue burden or expense" in order to respond to the discovery request.
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The Court provided the guidance that, in general, the first three classes may be considered accessible while the last two may be considered inaccessible. In the specific case before the Court, it was found that there existed both accessible and inaccessible data, with active e-mail files falling into
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The Court identified the standard for "undue" at 26(b)(2)(B) of the Rules. It clarified that it is wrong for courts to take the position that the standard for undue is met simply because electronic evidence is involved in a particular case. The Court explained that such a presumption is false because
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The Court also considered the legal presumption that the side which is responding to a discovery request should pay for the expenses incurred to comply with such a request. ('Oppenheimer presumption'). Although such a presumption exists, the Court does have the discretion (supported by Rule 26(c)) to
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Notes of
Advisory Committee on 1970 Amendments to Rules, Federal Rules of Civil Procedure: "The inclusive description of "documents" is revised to accord with changing technology. It makes clear that Rule 34 applies to electronic data compilations from which information can be obtained only with the
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produce all responsive e-mails that exist on its optical disks or on its active servers (i.e., in HP OpenMail files) at its own expense. UBS is also ordered to produce, at its expense, responsive emails from any five backups tapes selected by
Zubulake. UBS should then prepare an affidavit detailing
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Offline storage/archives data, which is when data is stored to an optical disk or magnetic tape for archival purposes because it was determined that the chance of needing access to the data is low. In this case, access is slower than near-line data because it requires manual retrieval. The speed of
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Also, the Court stated that a factor relating to determining what is "undue" is whether the electronic data is in accessible or inaccessible form, which largely depends on the media it is saved to. The Court identified five classes of data and media according to its accessibility, starting with the
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Backup tapes involves saving data to tape-recorder type of device and can hold up to many gigabytes of information. It is not possible to retrieve individual documents because backup tapes contain data which is recorded to mirror of each computer's structure. They also often involve compression of
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Further guidance was provided by the Court that these factors should not be weighed equally, but rather in descending order with the first two being given the most weight. Also, a factual basis is required to support the consideration of the factors. To do so, it may be possible to require that a
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issued on July 20, 2004, involved the plaintiff wanting an adverse inference to the jury based on the defendants delays and incompleteness in providing requested e-mails from backup tapes. Also, the Court found that deleted e-mails prejudiced the plaintiff's case. The Court examined the issue of
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The Court cited as further rationale that cost-shifting can serve to end the discovery process, especially in the case of private litigants where one of the parties is a large corporation. This is because large corporations tend to use digital methods of communication, with some actively moving
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UBS objected to the plaintiff's request, stating that the cost associated with complying would be too high, which they estimated to be about $ 175,000 excluding the cost of lawyers reviewing the e-mails. Alternatively, the defendants asked that the plaintiff shoulder the cost of such electronic
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Rule 26(b)(2) of the Rules limits the scope of discovery with proportionality considerations. For example, if "(iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the
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According to the decision, UBS e-mails were automatically backed up on tapes and optical disks. Optical disks contained only the internal emails of registered traders. To restore a backup tape would take UBS approximately five days, although such restoration could be faster if using services
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05 Civ. 9016 released on
January 11, 2010, Judge Scheindlin pens a judgement titled "Zubulake Revisited" regarding spoilation and litigation hold. (Scheindlin's ruling regarding litigation holds was rejected by the Second Circuit Court of Appeals in a different case.)
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Rule 34 states that one may request the discovery of documents. This applies to electronic data, even if it may "be obtained only with the use of detection devices" where the "respondent may be required to use his devices to translate the data into usable form."
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have the requesting party pay the cost of the discovery if it would result in "undue burden or expense." This is known as "cost shifting." A leading judgment in this area considered by the Court in
Zubulake I is The Rowe Entertainment eight factor test.
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the first category, and e-mails saved to optical disk falling into the second or third category. Since backup tapes are a form of inaccessible data, the Court found it appropriate to consider cost-shifting for the recovery of e-mails from those tapes.
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use of detection devices, and that when the data can as a practical matter be made usable by the discovering party only through respondent's devices, respondent may be required to use his devices to translate the data into usable form."
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The Court examined the Rowe seven factor test and found that it favoured cost-shifting. To respect the
Oppenheimer presumption and ensure that the test be neutral, the Court modified the Rowe test to the following seven factor test:
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Active and stored data of the computer system must be very well understood. Costs for retrieving accessible information should be covered by the responder. Only when retrieving inaccessible data should cost-shifting be
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Citing Rule 34, the Court in
Zubulake I stated that electronic documents can equally be the subject of discovery as paper documents. Furthermore, this is equally valid for digital data on backup tapes.
35:. It is the first in a series of Zubulake judgements relating to discovery issues, and is also referred to as "Zubulake I". See section "Other Proceedings" for information on other Zubulake decisions.
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the results of its search, as well as the time and money spent. After reviewing the contents of the backup tapes and UBS's certification, the Court will conduct the appropriate cost-shifting analysis.
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Active, online data, such as data on a hard drive. This is the most accessible for of data since it is at its most active. For example, when data is created, accessed and processed the most.
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The Court clarified that cost-shifting need not be considered in all cases regarding electronic discovery of digital information, and that the
Oppenheimer presumption should be respected.
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Rule 26(b)(1) states that "Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense…" creating a wide scope for discovery.
233:- also released on May 13, 2003 found that the plaintiff was not under an obligation to report alleged securities violations contained in a deposition to the Court.
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Near-line data, such as data contained on optical disks. Retrieval time is slightly slower than from, for example, a hard drive. However, it is still very accessible.
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electronic evidence is often easier and cheaper to produce than paper evidence as it can be searched automatically, reducing the need for photocopying, etc.
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available in the private sector for a higher price. Ninety-four backup tapes were identified as containing information relevant to
Zubulake's request.
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Due to the factual nature of the cost-shifting test, it may be prudent to request that a small sample of the inaccessible data be restored.
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Erased, fragmented or damaged data is the least accessible form of data. Fragmented data occurs if data is stored in clusters.
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importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues."
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The Court concludes by describing its three step approach regarding electronic discovery and costs for such discovery:
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most accessible and ending with the least accessible. To paraphrase the Court, the five classes identified were:
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Pension
Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, LLC, et al.,
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Pension
Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, LLC, et al.,
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and retaliation lawsuit, the plaintiff Laura Zubulake moved to obtain from defendants UBS Warburg LLC,
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1. The extent to which the request is specifically tailored to discover relevant information;
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4. The total cost of production, compared to the resources available to each party;
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data. For these reasons, restoration of tapes and access to data is slow and costly.
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5. The relative ability of each party to control costs and its incentive to do so;
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accessing such data can take days depending on storage facility arrangements.
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Analysis of the Issues by the Court (application of the law to the facts)
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United States District Court for the Southern District of New York cases
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3. The total cost of production, compared to the amount in controversy;
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small sample be recovered so as to determine whether the test is met.
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7. The relative benefits to the parties of obtaining the information.
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United States District Court for the Southern District of New York
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destruction of evidence, spoliation and duty of litigation hold.
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Rowe Entm't, Inc. v. William Morris Agency, Inc., 205 F.R.D. 421
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6. The importance of the issues at stake in the litigation; and
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2. The availability of such information from other sources;
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The issues identified by the Court for consideration were:
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1) Should discovery of UBS' electronic data be permitted?
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Should discovery of UBS' electronic data be permitted?
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80:3) What is the proper cost-shifting analysis?
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161:What is the proper cost-shifting analysis?
216:The Court ordered that the defendants:
484:Overview of Zubulake Revisited decision
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77:2) Should cost-shifting be considered?
19:is a landmark decision in the area of
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499:United States discovery case law
90:Federal Rules of Civil Procedure
479:Overview of Zubulake decisions
446:05 Civ. 9016, January 11, 2010
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212:Apply the cost-shifting test.
84:Laws considered by the Court
460:685 F.3d 135, July 10, 2012
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311:Fed. R. Civ. P. 26(b)(2)
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267:See also
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258:- In
88:U.S.
39:Facts
53:UBS
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