Landmark Zubulake E-Discovery Precedents Revisited Twenty Years Later

July 2024 marks the 20th anniversary of the final Zubulake v. UBS Warburg opinion out of the Southern District of New York. The Zubulake line of cases, authored by Hon. Shira A. Scheindlin, provided much of the foundation that still supports e-discovery jurisprudence today. Federal and state rules of civil procedure have since been adopted and amended to account for electronically stored information, previously limited to traditional physical paper documents.

Zubulake Opinions Revisited

Zubulake I & III posed the question - is data that is not reasonably accessible discoverable and, if so, who should bear the cost of discovery? Judge Scheindlin proposed a seven-factor test for evaluating cost-shifting, resulting in an order that Defendant pay 75% of the costs to restore and produce requested information from backup tapes, while shifting 25% of the costs to Plaintiff. Additionally, Judge Scheindlin distinguished between accessible and inaccessible data—the latter