316 䡲 Cyber Forensics Field Manual, Second Edition
Cost Shifting
It is generally understood and accepted that the responding party should bear the cost of produc-
tion of ESI, if the data is “reasonably accessible.” If it is not reasonably accessible, however, a cost-
shifting analysis will most likely be conducted, as per the precedent set by Judge Shira A. Scheindlin
of the U.S. District Court in Zubulake vs. UBS Warburg LLC.
In this landmark case, Judge Scheindlin noted that, “whether production of electronic evi-
dence is unduly burdensome or expensive turns primarily on whether it is kept in an accessible or
inaccessible format. And whether electronic data is accessible or inaccessible depends on which of
fi ve types of media it is stored ...