Discovery

Laura Zubulake’s missing emails

In June 2002, Laura Zubulake asked her former employer for every document concerning any communication among its employees about her. Zubulake, an equities trader, had sued UBS Warburg in federal court in New York for gender discrimination and retaliation. UBS answered the request with about 350 pages, roughly 100 of them emails. Zubulake knew that could not be all of it, because she had produced about 450 pages of relevant emails herself. UBS had never searched its backup tapes. The responsive email files sat on 94 of them, and UBS estimated that restoring them would cost about $175,000 before any lawyer read a page.

By July 2004 the court had written five opinions in the case, and discovery in what the judge called “a relatively routine employment discrimination dispute” had lasted more than two years. Along the way it ran through a document request, a deposition about how UBS stored its email, a fight over who would pay to restore it, and sanctions. So what can one side make the other hand over, with which device, and what happens when it refuses? In the activity, you map the devices under the federal and Florida rules, draft one of them twice, and turn an ignored request into a motion to compel. This reading takes the devices one at a time.

What discovery reaches

Every discovery device reaches only as far as the rule on scope allows. Under Federal Rule of Civil Procedure 26(b)(1), a party may discover any nonprivileged matter that is relevant to a party’s claim or defense and proportional to the needs of the case. The rule names what goes into proportionality. Among the factors are the amount in controversy, the parties’ relative access to the information, their resources, and whether the burden or expense of the discovery outweighs its likely benefit. Information inside that scope need not be admissible at trial to be discoverable.

UBS’s objection to the backup tapes was about cost: it told Zubulake that restoring them would be prohibitive. The federal rules first wrote cost-against-value factors in 1983, and in 2015 they moved them into the definition of scope itself. In other words, a request is not fair game just because it is relevant. It also has to be worth what it costs.

Florida took the same step on January 1, 2025. Before then, Florida Rule of Civil Procedure 1.280 reached anything relevant to the subject matter of the pending action, a wider net than relevance to a claim or defense. The new scope rule, Rule 1.280(c)(1), adopts almost all of the federal text. The Florida Supreme Court’s commentary says to apply it under the federal proportionality standard, and the court expected that to send judges and lawyers to federal history and precedent. Justice Labarga dissented from that part. Federal district judges, he wrote, have up to three law clerks and magistrate judges to help with discovery disputes. Florida trial judges lack that help, and proportionality objections would compete for scarce hearing time.

Scope sets what a party can ask for. Initial disclosures arrive before anyone asks. Federal Rule 26(a)(1) and Florida’s Rule 1.280(a) require each side to name the people likely to have discoverable information it may use. Each side must also share or describe the documents and electronically stored information (ESI) it may use, compute its damages, and turn over any insurance policy that may cover a judgment. Florida does not require a computation of noneconomic damages, such as pain and suffering, only the categories claimed and the supporting documents.

The two clocks start differently. Federal disclosures are due within 14 days after the parties’ Rule 26(f) conference, and no party may seek discovery before that conference. Florida’s are due within 60 days after service of the complaint, and a party may not seek discovery from any source until it has served its own. Both rules exempt some kinds of cases, and Florida’s requirement does not reach actions filed before January 1, 2025. Both also impose a duty to supplement. A party that learns a disclosure or a discovery response is incomplete or incorrect in some material respect must correct it in a timely manner.

Questions in writing

Two devices put questions to the other side in writing, and only a party has to answer either one. Interrogatories ask for information. Requests for admission ask the other side to concede a point.

Take a crash in Edgewater. A cyclist is struck by a pickup truck and sues its driver for negligence in Volusia County circuit court. Her lawyer does not write the first interrogatories to the driver from scratch. In a Florida case of general personal injury negligence, automobile negligence, or medical malpractice, Rule 1.340(a) requires initial interrogatories on a subject a Florida Supreme Court form covers to come from that form. The forms sit in Appendix I of the civil rules. Form 2 holds 15 general questions to a defendant, and Form 6 adds automobile questions numbered 16 through 23. Question 18 asks whether the defendant drank alcohol or took drugs or medication within 12 hours before the incident, and if so, what and when.

The forms count toward the limit. Florida allows 30 interrogatories, including all subparts, without leave of court; the federal rule allows 25, counting discrete subparts. Since 2025, Florida’s rule has also required objections to state their grounds with specificity, including the reasons. The court’s commentary adds that any use of the standard forms must be adjusted for proportional discovery. The answers come back in writing and under oath, within 30 days of service in either system. A Florida defendant has at least 45 days from service of the complaint, unless the court shortens the time.

A request for admission works the other way. It states a fact and asks the other side to admit or deny it: Admit that you were driving the pickup truck at 7:40 a.m. on March 3. The clock gives this device its force. Under Federal Rule 36(a)(3) and Florida Rule 1.370(a), a matter is admitted unless the party answers or objects within 30 days after service. A Florida defendant again gets at least 45 days from service of process unless the court shortens the time. An admitted matter is conclusively established for the pending action unless the court permits the party to withdraw or amend it. In Florida, the court may allow that when it helps present the merits and the party that obtained the admission cannot show prejudice.

A denial has to be honest, too. A party cannot plead lack of knowledge without stating that it made a reasonable inquiry. If it refuses to admit something the other side later proves, both systems let the court make it pay the reasonable expenses of that proof, fees included. Florida caps requests for admission at 30, including subparts; the federal rule sets no number.

Documents, data, and testimony

Zubulake’s case began with a request for production. Under Federal Rule 34 and Florida Rule 1.350, a party may demand documents, ESI, and tangible things in the other party’s possession, custody, or control. The request describes each item or category with reasonable particularity. The response is due within 30 days, or 45 days after service of process for a Florida defendant. For each item or category, it agrees to the inspection or states specific grounds for objecting. Since 2025, Florida has also required what the federal rule already did: an objection must say whether any responsive materials are being withheld on the basis of that objection. The Florida Supreme Court added that sentence to end wasted effort over objections that withheld nothing.

Email is where the cost sits. A request may name the form in which ESI is to be produced. Without one, the producing party uses the form in which it ordinarily keeps the information or another reasonably usable form. The harder question is data that is hard to reach. In Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003) (opens in a new tab), Judge Shira Scheindlin drew a line between accessible and inaccessible data. Email on UBS’s active servers was accessible. Backup tapes, which had to be restored before anyone could read them, were not. UBS had to produce responsive email from its accessible sources at its own expense. For the tapes, she ordered a sample. UBS would restore five tapes of Zubulake’s choosing, also at its own expense, and the results would show whether the rest were worth their cost and who should pay. When the court later split the cost, UBS was ordered to pay 75 percent of restoring certain tapes.

Florida’s Rule 1.280(e) makes the same cut. A person may object to ESI from sources it identifies as not reasonably accessible because of burden or cost, and on a motion it must show that undue burden or cost. The court can still order the discovery for good cause. It can also make the requesting party pay some or all of the expense.

Documents come from parties. Testimony can come from anyone. A deposition takes a witness’s answers under oath, out of court, after reasonable written notice to every other party under Florida Rule 1.310(b)(1). The federal rule limits each side to 10 depositions without leave or a stipulation, and each deposition to one day of seven hours. Florida’s rules set no number and no time limit of their own; a court can impose both through a case management order or a protective order. In Zubulake’s case, a deposition did work beyond the merits. The court ordered UBS to produce someone who knew its email retention practices. UBS’s manager of global messaging then testified about how the backups ran and what restoring them would cost.

A subpoena reaches people who are not parties. Under Federal Rule 45(c)(1)(A), it can command attendance at a deposition within 100 miles of where the person lives, works, or regularly does business in person. Florida’s Rule 1.410(e)(2) ties it to a county instead: the county where the person lives, works, or does business in person, or another convenient place a court order fixes. For documents alone, Florida has a separate route, Rule 1.351. The party must first give every other party notice and a copy of the proposed subpoena, and any party’s objection stops production until the objection is resolved.

When a party won’t comply

Discovery mostly runs without a judge. Requests and responses pass between the parties. In federal court, Rule 5(d)(1)(A) keeps interrogatories, document requests, requests for admission, and the responses to them off the docket until they are used in the proceeding or the court orders them filed. Florida’s Rule 1.280(h) likewise bars filing information obtained in discovery without good cause. A judge usually sees discovery when it breaks down.

Then the requesting party files a motion to compel under Federal Rule 37(a) or Florida Rule 1.380(a). Both rules treat an evasive or incomplete answer as a failure to answer. Before filing, the movant has to try to work things out. Federal Rule 37(a)(1) requires a certification that the movant conferred or attempted to confer in good faith. On January 1, 2025, Florida moved its requirement into Rule 1.202, which covers non-dispositive motions generally. The motion ends with a certificate of conferral saying how and when the lawyers discussed the relief. If the other side never responded, the certificate describes the efforts to reach it with particularity. Rule 1.202 does not apply when either side is representing itself.

Losing the motion costs money. When a Florida court grants a motion to compel, Rule 1.380(a)(4) says it must make the party whose conduct required the motion, or the lawyer who advised that conduct, pay the movant’s reasonable expenses. That includes fees, unless the opposition was substantially justified or an award would be unjust. A party that then disobeys the order faces the harder sanctions in Rule 1.380(b)(2): facts taken as established, evidence excluded, pleadings struck, the action dismissed, or a default judgment. Florida’s 2025 amendments added a sanction that needs no prior order. Under Rule 1.380(d), as under Federal Rule 37(c)(1), a party that fails to disclose or to supplement cannot use the missing information or witness at a hearing or trial. The exception is a failure that was substantially justified or harmless.

Lost data is its own category, and Zubulake’s fifth opinion turned on it. UBS’s lawyers had told employees to keep relevant email as early as August 2001. Some employees deleted it anyway, and some of what they deleted was lost for good when backup tapes were recycled. In Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004) (opens in a new tab), the court found that UBS had acted willfully. It ordered an adverse inference instruction to the jury about email deleted after August 2001. UBS also had to pay for the depositions its late production made necessary, and the costs of the motion.

Today, Federal Rule 37(e) and Florida Rule 1.380(f) govern lost ESI that a party failed to take reasonable steps to preserve. On finding prejudice to the other side, a court may order measures no greater than necessary to cure it. The stronger measures require a finding that the party intended to deprive the other side of the information: a presumption that it was unfavorable, a jury instruction to that effect, dismissal, or a default judgment.

Checking the model’s drafts

Zubulake knew UBS’s production was short because she held emails it had never turned over. You check an AI’s discovery drafts the same way, against something you hold: the rule’s text. In the activity, the Rule Comparison Mapper builds the table this reading walked through, device by device, and each row is yours to confirm on Cornell or The Florida Bar’s site. If you pick interrogatories for a Florida crash case, open Appendix I before you read the Instrument Drafter’s set, because a set written from scratch can skip the form Rule 1.340 requires. And when the Dispute-to-Sanctions Walkthrough certifies a conferral, look for the rule it cites. The right answer changed in 2025.