Master Landmark e-discovery series defining cost-shifting, preservation duties, and spoliation sanctions. with this comprehensive case brief.
Zubulake v. UBS Warburg is the foundational federal case series that ushered in the modern era of electronic discovery. In a set of five opinions, Judge Shira A. Scheindlin addressed when and how parties must preserve electronically stored information (ESI), who pays to restore and produce data from backup media, and what sanctions apply when a party fails to meet those obligations. The opinions refined cost-shifting analysis for inaccessible ESI, clarified the scope of the duty to preserve upon reasonably anticipating litigation, and articulated the now-familiar requirement that counsel implement and monitor a written litigation hold.
Zubulake’s influence extends well beyond the facts of a single employment discrimination suit. The decisions catalyzed the 2006 amendments to the Federal Rules of Civil Procedure (especially Rules 26 and 34) and foreshadowed the 2015 changes to Rule 37(e) governing spoliation of ESI. For law students and practitioners, Zubulake remains the touchstone for proportionality-driven e-discovery, preservation planning, and sanctions analysis.
Zubulake v. UBS Warburg LLC (Zubulake I), 217 F.R.D. 309 (S.D.N.Y. 2003); Zubulake v. UBS Warburg LLC (Zubulake II), 230 F.R.D. 290 (S.D.N.Y. 2003); Zubulake v. UBS Warburg LLC (Zubulake III), 216 F.R.D. 280 (S.D.N.Y. 2003); Zubulake v. UBS Warburg LLC (Zubulake IV), 220 F.R.D. 212 (S.D.N.Y. 2003); Zubulake v. UBS Warburg LLC (Zubulake V), 229 F.R.D. 422 (S.D.N.Y. 2004) (S.D.N.Y., Scheindlin, J.)
Laura Zubulake, an equities trader, sued her former employer UBS Warburg for gender discrimination, failure to promote, and retaliation. Anticipating that relevant evidence would be contained in emails and other ESI, Zubulake sought discovery of communications among key decisionmakers. UBS resisted, arguing that much of the requested data resided on numerous disaster-recovery backup tapes that were costly to restore and search. The parties disputed the scope of production, who should bear the potentially substantial costs of restoring and reviewing the data, and whether UBS had preserved evidence after litigation was reasonably anticipated. Throughout motion practice, it emerged that UBS had routine deletion and backup-tape rotation policies and that some relevant emails had been deleted by employees notwithstanding counsel’s instructions. The court navigated these disputes across multiple opinions: it defined categories of accessible versus inaccessible data, ordered sampling of backup tapes, allocated costs between the parties, set out counsel’s obligations to implement and monitor a litigation hold, and ultimately sanctioned UBS for spoliation, including by giving an adverse inference instruction and awarding certain costs.
In civil discovery involving ESI, (1) when and under what circumstances should a court shift costs of producing data—particularly from backup tapes deemed not reasonably accessible—and (2) what are a party’s and counsel’s duties to preserve ESI once litigation is reasonably anticipated, and what sanctions are appropriate for spoliation?
E-Discovery Cost-Shifting and Accessibility (Zubulake I/II/III): - Default rule: The producing party bears the costs of discovery. Cost-shifting is the exception and is considered primarily for ESI that is not reasonably accessible (e.g., disaster-recovery backup tapes) due to undue burden or cost. - Accessibility distinction: Data on active systems is generally accessible; data on backup tapes or legacy systems is often not reasonably accessible. - Seven-factor cost-shifting test (reordered and refined from Rowe): (1) the extent to which the request is specifically tailored to discover relevant information; (2) the availability of such information from other sources; (3) the total cost of production compared to the amount in controversy; (4) the total cost of production compared to the parties’ resources; (5) the relative ability of each party to control costs and its incentive to do so; (6) the importance of the issues at stake in the litigation; and (7) the relative benefits to the parties of obtaining the information. - Sampling: Courts may order restoration and search of a sample set of backup tapes to inform cost, burden, and likely yield before deciding on full restoration or cost-shifting. Preservation Duties and Litigation Hold (Zubulake IV): - Duty to preserve arises when a party reasonably anticipates litigation. From that point, parties must suspend routine deletion policies and preserve relevant information. - Scope: Parties must preserve unique, relevant ESI, focusing on “key players” and sources where responsive data is likely located. Not every backup tape must be preserved, but tapes that are the sole source of relevant information (e.g., those of key players) must be protected from rotation/overwriting. - Counsel’s obligations: (1) issue a clear, written litigation hold; (2) communicate directly with key players and IT to identify and preserve relevant ESI; (3) monitor compliance, periodically follow up, and document preservation efforts. Spoliation and Sanctions (Zubulake V; Second Circuit standard): - To obtain an adverse inference for spoliation, the movant must show: (1) the party had a duty to preserve when evidence was destroyed; (2) the ESI was destroyed with a culpable state of mind (negligence, gross negligence, or willfulness); and (3) the destroyed evidence was relevant to the claims or defenses such that a reasonable trier of fact could find it would have been favorable to the movant. - Sanctions may include adverse inference instructions, cost-shifting, additional discovery, and other remedial measures proportionate to prejudice and culpability.
The court held that electronic discovery is subject to the same principles as traditional discovery and that cost-shifting is appropriate only for ESI that is not reasonably accessible. Applying a seven-factor test and after ordering sampling, the court required UBS to restore and produce emails from numerous backup tapes, allocating the lion’s share of the restoration and production costs to UBS while shifting a modest portion to Zubulake for certain inaccessible data. In later opinions, the court held that UBS breached its duty to preserve ESI once litigation was reasonably anticipated and that counsel failed to institute and monitor an effective litigation hold. As a sanction for spoliation, the court issued an adverse inference instruction, permitted additional discovery, and awarded certain costs.
Cost-shifting: Judge Scheindlin reasoned that discovery rules presume the producing party bears costs, but that ESI can present unique burdens when data is not reasonably accessible. By distinguishing accessible active data from inaccessible backup tapes and legacy media, the court focused proportionality on the latter. The seven-factor test places greatest weight on specificity and availability from alternative sources, ensuring that cost-shifting is driven by targeted, necessary discovery rather than fishing expeditions. Sampling provided an empirically grounded basis to assess relevance yield and cost before committing to full restoration. Preservation and litigation hold: The court emphasized that the duty to preserve attaches when litigation is reasonably anticipated—not only upon filing—and that this duty requires affirmative, documented steps. Counsel must craft a written litigation hold tailored to the case, identify key players, work with IT to suspend auto-deletion where appropriate, collect active data, and periodically verify compliance. Because certain backup tapes may be the only repository for relevant data, those must be preserved; wholesale preservation of all tapes is not necessarily required, preserving proportionality. Spoliation and sanctions: Applying Second Circuit standards, the court found that UBS had a preservation duty, acted at least negligently (and at times worse) in allowing deletion and overwriting, and that the lost emails were relevant. Given the prejudice to Zubulake’s ability to prove discrimination and retaliation, an adverse inference instruction was warranted, alongside cost awards and remedial discovery. The sanctions were calibrated to both deter future misconduct and remediate prejudice, consistent with the proportionality values later reflected in Federal Rule revisions.
Zubulake is the seminal authority on e-discovery. It clarified that: (1) cost-shifting is exceptional and informed by a structured, proportionality-based analysis; (2) the duty to preserve ESI arises upon reasonable anticipation of litigation; (3) counsel must implement and monitor a written litigation hold; and (4) spoliation of ESI may warrant adverse inferences and other sanctions. The case influenced the 2006 FRCP amendments that explicitly addressed ESI (e.g., Rule 26(b)(2)(B) on not reasonably accessible ESI and Rule 34 production of ESI) and presaged the 2015 revision of Rule 37(e) on ESI spoliation. For law students, Zubulake provides a practical blueprint for managing e-discovery, balancing proportionality and fairness, and understanding counsel’s ethical and procedural responsibilities.
The court considers: (1) specificity of the request; (2) availability of the information from other sources; (3) total cost of production compared to the amount in controversy; (4) total cost compared to the parties’ resources; (5) the relative ability of each party to control costs and incentives to do so; (6) the importance of the issues at stake; and (7) the relative benefits to the parties of obtaining the information. The first two factors carry the most weight. Cost-shifting is considered mainly for ESI that is not reasonably accessible, such as disaster-recovery backup tapes.
The duty to preserve arises when a party reasonably anticipates litigation—not just when a complaint is filed. At that point, parties must suspend routine deletion and take affirmative steps to preserve relevant information, focusing on key players and unique sources (e.g., backup tapes that are the sole source of relevant data).
Counsel must: (1) issue a clear, written hold notice tailored to the claims and custodians; (2) communicate directly with key players and IT to identify, preserve, and collect relevant ESI; (3) suspend auto-deletion for relevant repositories; and (4) monitor and document compliance with periodic follow-ups. Simply telling employees to “save emails” is insufficient.
The court kept the default rule for accessible data (UBS bore production costs) and used cost-shifting only for restoring and searching inaccessible backup tapes. After sampling showed significant relevance, the court required full restoration and shifted a modest portion of restoration costs to the requesting party, with UBS bearing the majority. Review costs generally remained with UBS.
The movant must show: (1) a duty to preserve existed when the ESI was destroyed; (2) the destruction occurred with a culpable state of mind (negligence, gross negligence, or willfulness); and (3) the missing ESI was relevant such that a reasonable jury could find it would have supported the movant’s case. Upon such a showing, an adverse inference instruction and other sanctions may be imposed.
Zubulake’s accessibility framework and proportionality focus informed the 2006 amendments (e.g., Rule 26(b)(2)(B) addressing not reasonably accessible ESI and Rule 34 on ESI production) and anticipated the 2015 revision of Rule 37(e), which codifies a calibrated approach to ESI spoliation and sanctions.
Zubulake transformed e-discovery from an ad hoc practice into a principled, proportional, and ethically grounded process. By distinguishing accessible from inaccessible ESI and articulating a seven-factor cost-shifting test, the court ensured that the burdens of electronic production would be allocated fairly and based on demonstrated need.
Equally important, Zubulake defined the modern duty to preserve and the lawyer’s central role in implementing a litigation hold and supervising compliance. Its spoliation framework and sanctioning power continue to shape discovery conduct and judicial remedies, making the case essential reading for any student or practitioner navigating the realities of digital evidence.