Zubulake I

Zubulake v. UBS Warburg is a landmark decision in the area of electronic discovery and the burden of costs for such discovery. It was released on May 13, 2003 and was written by Judge Shira A. Scheindlin of the United States District Court for the Southern District of New York. 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.

In the context of a gender discrimination and retaliation lawsuit, the plaintiff Laura Zubulake moved to obtain from defendants UBS Warburg LLC, UBS Warburg and UBS AG ('UBS') “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.

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 available in the private sector for a higher price. Ninety-four backup tapes were identified as containing information relevant to Zubulake’s request.

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 discovery.

The issues identified by the Court for consideration were:

1) Should discovery of UBS’ electronic data be permitted?

2) Should cost-shifting be considered?

3) What is the proper cost-shifting analysis?

U.S. Federal Rules of Civil Procedure 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.

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