## Facts

- Laura Zubulake sued UBS for gender discrimination, failure to promote, and retaliation; the opinion addressed only electronic discovery.
- Zubulake sought e-mails relating to her, including e-mails stored on backup tapes and other archival media.
- UBS produced roughly 100 pages of e-mails, while Zubulake produced over 450 pages from her own retained records, suggesting missing responsive e-mails.
- UBS claimed restoring and searching backup tapes would cost about $175,000 to $300,000 (excluding attorney review).
- The court classified electronic data into five categories: online, near-line, offline, backup tapes, and fragmented/erased/damaged data.
- The court treated online/near-line/offline data as generally accessible, and backup tapes plus fragmented/erased/damaged data as generally inaccessible for cost and burden analysis.
- Zubulake moved to compel additional production and for a ruling on cost allocation for restoring and producing e-mails from inaccessible media.

## Issues

1. To what extent is electronically stored information on inaccessible media (especially backup tapes) discoverable under the Federal Rules of Civil Procedure?
2. When, and under what standard, may a court shift the costs of restoring and producing such inaccessible electronic data to the requesting party?

## Decision

- The court held that accessible electronic data must generally be produced at the responding party’s expense.
- The court held that inaccessible electronic data remains discoverable, but cost-shifting may be appropriate in limited circumstances.
- The court adopted a sampling approach, requiring restoration of a representative set of backup tapes to assess likely relevance and yield relative to cost.
- Applying a multi-factor balancing test, the court ordered additional restoration and production from backup tapes and allocated restoration costs in part to Zubulake and in part to UBS.

## Legal Principles

- Discovery cost allocation follows a presumption: the responding party ordinarily bears the expense of producing requested information.
- Whether production is unduly burdensome or expensive turns primarily on whether the data is maintained in an accessible or inaccessible format.
- Backup tapes are typically “inaccessible” because they are not searchable in the ordinary course of business and commonly require restoration before review.
- Cost-shifting is an exception, most appropriate where the requested information is on genuinely inaccessible media.
- Courts should evaluate cost-shifting for inaccessible data through a case-specific balancing under Rule 26(b)(2), using seven factors:
  - The extent to which the request is specifically tailored to discover relevant information.
  - The availability of the 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 parties’ relative ability to control costs and their incentives to do so.
  - The importance of the issues at stake.
  - The parties’ relative benefits from obtaining the information.
- Sampling may be used to estimate the likely evidentiary value of inaccessible data before ordering broad restoration and to inform proportional cost allocation.

## Conclusion

The court required additional production of e-mails from backup tapes, treated cost-shifting as a limited exception for inaccessible data, and established a seven-factor, proportionality-based framework—supported by sampling—to determine when and how restoration costs should be allocated.


Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003)