Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003) (“Zubulake I”)
Plaintiff in employment discrimination suit contended that key evidence was located in various emails exchanged among defendant’s employees that existed only on backup tapes and perhaps other archived media. According to defendant, restoration of the emails would cost approximately $175,000, exclusive of attorney review time. Plaintiff moved for an order compelling the defendant to produce the email at its own expense.
The court opined that whether production of documents is unduly burdensome or expensive “turns primarily on whether it is kept in an accessible or inaccessible format (a distinction that corresponds closely to the expense of production).” 217 F.R.D. at 318. It elaborated:
In the world of paper documents, for example, a document is accessible if it is readily available in a usable format and reasonably indexed. Examples of inaccessible paper documents could include (a) documents in storage in a difficult to reach place; (b) documents converted to microfiche and not easily readable; or (c) documents kept haphazardly, with no indexing system, in quantities that make page-by-page searches impracticable. But in the world of electronic documents, thanks to search engines, any data that is retained in a machine readable format is typically accessible.
Id. It concluded that, whether electronic data is accessible or inaccessible turns largely on the media on which it is stored. It described five categories of electronic documents: (1) active, online data, including hard drives; (2) near-line data, including optic disks; (3) offline storage/archives, which are removable optical disk or magnetic tape media; (4) backup tapes; and (5) erased, fragmented or damaged data. The court stated that, of these, the first three are typically identified as accessible, and the later two as inaccessible. It stated that the difference between the two is easy to appreciate:
Information deemed “accessible” is stored in a readily usable format. Although the time it takes to actually access the data ranges from milliseconds to days, the data does not need to be restored or otherwise manipulated to be usable. “Inaccessible” data, on the other hand, is not readily usable. Backup tapes must be restored . . . fragmented data must be de-fragmented, and erased data must be reconstructed, all before the data is usable. That makes such data inaccessible.
Id. at 320.
Because some of the email sought by plaintiff was stored on backup tapes and therefore inaccessible, the court found it appropriate to consider cost-shifting. It discussed the Rowe Entertainment balancing test, and concluded that it needed modification. It stated that the amount in controversy and the importance of the issues at stake in the litigation needed to be added to the analysis; conversely, it stated that two of the Rowe factors should be eliminated: “the specificity of the discovery request,” because it is already a part of the relevance consideration, and “the purpose for which the responding party maintains the requested data,” because this is typically unimportant. Thus, the court created a new seven-factor test:
- The extent to which the request is specifically tailored to discover relevant information;
- The availability of such information from other sources;
- The total cost of production, compared to the amount in controversy;
- The total cost of production, compared to the resources available to each party;
- The relative ability of each party to control costs and its incentive to do so;
- The importance of the issues at stake in the litigation; and
- The relative benefits to the parties of obtaining the information.
Id. at 322. The court further opined that the factors should not be weighted equally, but in descending order of importance. It stated that the first two factors, which essentially comprise the marginal utility test, are the most important.
The court further observed that a factual basis is required to support the analysis, and that such proof “will rarely exist in advance of obtaining the requested discovery.” Id.at 323. Thus, it concluded that requiring the responding party to restore and produce responsive documents from a small sample of backup tapes will inform the cost-shifting analysis.
When based on an actual sample, the marginal utility test will not be an exercise in speculation – there will be tangible evidence of what the backup tapes may have to offer. There will also be tangible evidence of the time and cost required to restore the backup tapes, which in turn will inform the second group of cost-shifting factors. Thus, by requiring a sample restoration of backup tapes, the entire cost-shifting analysis can be grounded in fact rather than guesswork.
Id. at 324. Thus, the court held that deciding disputes regarding the scope and cost of discovery of electronic data requires a three-step analysis: First, it is necessary to thoroughly understand the responding party’s computer system. For data that is in an accessible format, the usual rules of discovery apply, and the responding party should pay the costs of producing responsive data. Cost-shifting should be considered only when 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 last, the court should analyze the seven factors in descending order of importance.
Applying this reasoning to the facts of the case, the court ordered the defendant to produce, at its expense, responsive emails from any five backup tapes selected by the plaintiff. It further directed the defendant to prepare an affidavit detailing the results of its search, as well as the time and money spent. The court stated that, after it received such information, it would conduct the cost-shifting analysis.