Beginning in 2002, an equity trader named Laura Zubulake filed suit against her former employer, UBS Warburg, for gender discrimination, failure to promote and retaliation. The potential for a large judgment was great, as damages would include lost wages and Zubulake made over $650,000 annually. The key evidence in this case was email correspondence, and initially, the defendants only produced about 100 emails. The plaintiff produced over 450 pages of email correspondence on relevant topics-and those were only the ones in which she was included! Obviously, this was a large discrepancy and evidenced the vast inadequacy of the defense production.
Zubulake alleged there were many missing emails between her bosses, the human relations director and two coworkers that would contain key evidence. The defendants admitted they preserved all emails, but alleged undue burden and expense of retrieval. They sought cost shifting to the plaintiff under Rule 26(c), and estimated the costs of restoring the emails to be between $175,000 and $300,000.
Judge Shira Scheindlin held that to consider cost-shifting, the first relevant inquiry was whether the data sought by the plaintiff was accessible or inaccessible. The defendants had three places that emails were found:
- Active emails, or ones online on the server
- Emails saved to optical disks, easily retrievable
- Emails saved to back-up disks, which would require time and money to produce
The Court held in this case that emails under the first two categories should be produced at defendant’s own expense. As the defendants admitted they might have about 94 back up disks with possibly relevant information, the Court in Zubulake I ordered the defendants to produce a sample set of five tapes. The court and parties would review the data and its relevance, then re-consider cost shifting the remaining production.
This was only the beginning of the Zubulake case. We will discuss more on this influential case this week, or for more information on email analytics and uncovering hidden data, call us at 888-313-4457 and visit our expert computer forensics webpage.