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Zubulake v. UBS Warburg - 7 Factor Cost Shifting Test


In 2003, Judge Shira Scheindlin issued several decisions in Zubulake v. UBS Warburg, which were among the very first to address key electronic discovery issues. She established a seven factor test designed to evaluate whether or not ESI ought to be regarded as so inaccessible that the requesting party should be obliged to cover the cost of its production. The test is comprised of these factors:

1. Whether or not the request is specifically tailored to demand the production of relevant data.

2. Whether or not the electronically stored information is available from other sources.

3. The cost of production relative to the resources of each party.

4. The cost of production relative to the total amount in controversy.

5. The relative benefit of the electronically stored information to the requesting party.

6. The importance of the issues at stake in the case.

7. The relative ability of the producing party to control its discovery costs.

This test is very familiar to attorneys across the United States, whether they specialize in electronic discovery issues or not. You can demonstrate that you have a nuanced knowledge of the Zubulake precedent by pointing out that Judge Scheindlin ordered the defendants to produce ESI from back-up tapes for review, before applying her cost shifting analysis.


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