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ZUBULAKE v. UBS WARBURG

July 24, 2003

LAURA ZUBULAKE, PLAINTIFF,
v.
UBS WARBURG LLC, UBS WARBURG, AND UBS AG, DEFENDANTS.



The opinion of the court was delivered by: Shira Scheindlin, District Judge

OPINION AND ORDER

On May 13, 2003, I ordered defendants UBS Warburg LLC, UBS Warburg, and UBS AG (collectively "UBS") to restore and produce certain e-mails from a small group of backup tapes. Having reviewed the results of this sample restoration, Laura Zubulake now moves for an order compelling UBS to produce all remaining backup e-mails at its expense. UBS argues that based on the sampling, the costs should be shifted to Zubulake.

For the reasons fully explained below, Zubulake must share in the costs of restoration, although UBS must bear the bulk of that expense. In addition, UBS must pay for any costs incurred in reviewing the restored documents for privilege.

I. BACKGROUND

The background of this lawsuit and the instant discovery dispute are recounted in two prior opinions, familiarity with which is presumed.*fn1 In brief, Zubulake, an equities trader who earned approximately $650,000 a year with UBS,*fn2 is now suing UBS for gender discrimination, failure to promote, and retaliation under federal, state, and city law. To support her claim, Zubulake seeks evidence stored on UBS's backup tapes that is only accessible through costly and time-consuming data retrieval. In particular, Zubulake seeks e-mails relating to her that were sent to or from five UBS employees: Matthew Chapin (Zubulake's immediate supervisor and the alleged primary discriminator), Jeremy Hardisty (Chapin's supervisor and the individual to whom Zubulake originally complained about Chapin), Rose Tong (a human relations representative who was assigned to handle issues concerning Zubulake), Vinay Datta (a co-worker), and Andrew Clarke (another co-worker). The question presented in this dispute is which party should pay for the costs incurred in restoring and producing these backup tapes.

In order to obtain a factual basis to support the costshifting analysis, I ordered UBS to restore and produce e-mails from five of the ninety-four backup tapes that UBS had then identified as containing responsive documents; Zubulake was permitted to select the five tapes to be restored.*fn3 UBS now reports, however, that there are only seventy-seven backup tapes that contain responsive data, including the five already restored.*fn4 I further ordered UBS to "prepare an affidavit detailing the results of its search, as well as the time and money spent."*fn5 UBS has complied by submitting counsel's declaration.*fn6

According to the declaration, Zubulake selected the backup tapes corresponding to Matthew Chapin's e-mails from May, June, July, August, and September 2001.*fn7 That period includes the time from Zubulake's initial EEOC charge of discrimination (August 2001) until just before her termination (in the first week of October 2001).*fn8 UBS hired an outside vendor, Pinkerton Consulting & Investigations, to perform the restoration.*fn9

Pinkerton was able to restore each of the backup tapes, yielding a total of 8,344 e-mails.*fn10 That number is somewhat inflated, however, because it does not account for duplicates. Because each month's backup tape was a snapshot of Chapin's server for that month — and not an incremental backup reflecting only new material — an e-mail that was on the server for more than one month would appear on more than one backup tape. For example, an e-mail received in January 2001 and deleted in November 2001 would have been restored from all five backup tapes. With duplicates eliminated, the total number of unique e-mails restored was 6,203.*fn11

Pinkerton then performed a search for e-mails containing (in either the e-mail's text or its header information, such as the "subject" line) the terms "Laura", "Zubulake", or "LZ".*fn12 The searches yielded 1,541 e-mails,*fn13 or 1,075 if duplicates are eliminated.*fn14 Of these 1,541 e-mails, UBS deemed approximately 600 to be responsive to Zubulake's document request and they were produced.*fn15 UBS also produced, under the terms of the May 13 Order, fewer than twenty e-mails extracted from UBS's optical disk storage system.*fn16

Pinkerton billed UBS 31.5 hours for its restoration services at an hourly rate of $245, six hours for the development, refinement and execution of a search script at $245 an hour,*fn17 and 101.5 hours of "CPU Bench Utilization" time for use of Pinkerton's computer systems at a rate of $18.50 per hour.*fn18 Pinkerton also included a five percent "administrative overhead fee" of $459.38.*fn19 Thus, the total cost of restoration and search was $11,524.63.*fn20 In addition, UBS incurred the following costs: $4,633 in attorney time for the document review (11.3 hours at $410 per hour)*fn21 and $2,845.80 in paralegal time for tasks related to document production (16.74 hours at $170 per hour).*fn22 UBS also paid $432.60 in photocopying costs,*fn23 which, of course, will be paid by Zubulake and is not part of this cost-shifting analysis.*fn24 The total cost of restoration and production from the five backup tapes was $19,003.43.*fn25

UBS now asks that the cost of any further production — estimated to be $273,649.39, based on the cost incurred in restoring five tapes and producing responsive documents from those tapes — be shifted to Zubulake. The total figure includes $165,954.67 to restore and search the tapes and $107,694.72 in attorney and paralegal review costs. These costs will be addressed separately below.

II. LEGAL STANDARD

The Federal Rules of Civil Procedure specify that "any matter, not privileged, that is relevant to the claim or defense of any party" is discoverable,*fn26 except where:

(i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (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 importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.*fn27
Although "the presumption is that the responding party must bear the expense of complying with discovery requests," requests that run afoul of the Rule 26(b)(2) proportionality test may subject the requesting party to protective orders under Rule 26(c), "including orders conditioning discovery on the requesting party's payment of the costs of discovery."*fn28 A court will order such a cost-shifting protective order only upon motion of the responding party to a discovery request, and "for good cause shown."*fn29 Thus, the responding party has the burden of proof on a motion for cost-shifting.*fn30

III. DISCUSSION

A. Cost-Shifting Generally

In Zubulake I, I considered plaintiff's request for information contained only on backup tapes and determined that cost-shifting might be appropriate.*fn31 It is worth emphasizing again that cost-shifting is potentially appropriate only when inaccessible data is sought. When a discovery request seeks accessible data — for example, active ...


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