The Zubulake Factors are used by a court to determine whether cost shifting is appropriate to shift the burden of costs of compliance with an electronic discovery request from the receiving party to the requesting party. (See Federal Rule 26(b)(2) more specifically.) The factors are the product of a series of decisions in Zubulake v. UBS Warburg LLC, 216 F.R.D. 280 (S.D.N.Y. 2003) and which are often referred to by number, including specifically Zubulake I, 217 F.R.D. at 322 and Zubulake III, 216 F.R.D. at 284.
- The extent to which the request is specifically tailored to discover relevant information;
- The availability of such information from other sources;
- The total costs of production compared to the amount in controversy;
- The total costs of production, compared to the resources available to each party;
- The relative ability of each party to control costs and its incentive to do so;
- The importance of the issues at stake in the litigation; and
- The relative benefits to the parties of obtaining the information.
The first two factors are also known as the “Marginal Utility Test” which concerns the necessity of requiring the receiving party to provide the requested electronic evidence and whether it may be more easily available via alternatives. The middle three are known as the “cost factors” which weigh the cost of producing the electronic evidence as well as trying to establish a sense of fairness in legal proceedings.