Plaintiff sued Defendant for gender discrimination and retaliation. In discovery Plaintiff requested copies of e-mails located in Defendant’s archives. Defendant refused to produce the emails because of the high cost of accessing the archives.
It should be presumed that the producing party bears the cost of production in discovery requests for electronic data, unless the production would impose an undue burden or expense. Production of the data is unduly burdensome or expensive when it is inaccessible, and if it is inaccessible the court should weigh a number of factors before deciding to shift the cost to the requesting party.
Laura Zubulake (Plaintiff) sued UBS Warburg LLC (Defendant) for gender discrimination and retaliation. In discovery, Plaintiff requested copies of e-mails exchanged between Defendant’s employees which she contended contained key evidence. Defendant produced 100 pages of emails, but refused to produce any additional emails, arguing that the e-mails stored in its backup tapes were not required by Plaintiff’s discovery request and that production of the emails would be an undue burden of the cost.
Must the Defendant pay for the production of the e-mails requested through discovery?
Yes, the Defendant bears the burden of producing and paying for all accessible e-mails requested through discovery. The case is remanded for determination of cost-shifting for inaccessible e-mails.
The Court first determined that active-user e-mail files and archived e-mails located on optical disks were accessible and Defendant had the burden of paying for the production of those e-mails. The Court next determined that the e-mails located on the backup tapes were not accessible and thus required a cost-shifting analysis. The Court rejected the use of the Rowe factors, determining that they improperly favored cost-shifting. The Court proposed a new seven factor test, emphasizing that the factors should not be weighed equally and that lower courts should require a small sample of production to inform the relevancy of the documents and cost of production.