In 2003, in an attempt to address the growing concerns regarding electronic discovery, the U.S. District Court for the Southern District of New York, in Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, set forth what was, at the time, a ground-breaking rule regarding electronically stored information. The first in the series of cases on the issue, Zubulake I, assessed whether costs of production should be shifted to the requesting party. The Zubulake court found that there were certain types of information that were inaccessible, such as backup tapes and erased or fragmented data. The court in Zubulake I reasoned that the restoration process for backup tapes was lengthy, with each tape taking approximately five days to restore. The cost and time to the responding party therefore, would appear to be extreme. Zubulake IV, 220 F.R.D. 212, expanded on this idea of accessibility, seemingly finding that disaster recovery tapes are per se inaccessible.
Today, nearly six years after Zubulake, these concerns are not nearly as prevalent. It no longer takes days to restore a single backup tape. Rather, given the vast advances in technology since the days of Zubulake, or even the 2006 amendments to the Federal Rules of Civil Procedure, many companies now have disaster recovery systems from which data can be completely restored within a matter of hours. As such, data that was once deemed per se inaccessible, is now, in fact, readily accessible.
