UBS was previously ordered produce emails from a sample group of backup tapes to provide a factual basis for a cost-shifting analysis. Having completed the sample production, Zubulake sought production from the remaining tapes with UBS bearing the expense. UBS argued that cost-shifting was appropriate based on the results of the sample.
The court reiterated the process and factors for consideration in a cost-shifting analysis, originally set forth in Zubulake I. The conclusion of the analysis was:
“Factors one through four tip against cost-shifting (although factor two only slightly so). Factors five and six are neutral, and factor seven favors cost-shifting. As noted in my earlier opinion in this case, however, a list of factors is not merely a matter of counting and adding; it is only a guide. Because some of the factors cut against cost shifting, but only slightly so — in particular, the possibility that the continued production will produce valuable new information — some costshifting is appropriate in this case, although UBS should pay the majority of the costs. There is plainly relevant evidence that is only available on UBS’s backup tapes. At the same time, Zubulake has not been able to show that there is indispensable evidence on those backup tapes (although the fact that Chapin apparently deleted certain e-mails indicates that such evidence may exist).”
Zubulake was assigned twenty-five percent of the cost of restoring the backup tapes. All other costs, such as review and production of the documents, was the responsibility of UBS.
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