The New York Times story on the case of Zubulake v. UBS Warburg LLC is a little misleading. The article quotes a lawyer as saying:
"The decision is very significant and will help customers get crucial evidence for their cases. . . . As long as you can make a showing that the evidence you are asking for is relevant, the banks must bear the cost for searching through the e- mails."
I thought that the holding, by Judge Scheindlin of the US District Court of the Southern District of New York, was much more limited.
Essentially, the Federal Rules' liberalized discovery process requires the turning over of any relevant, non-privileged material, even if such materal is inadmissible, with such discovery limited if the "undue burden or expense" outweighs any benefits. Judges have frequently resolved this balance by shifting the costs of discovery to the requesting party. In this case, Judge Scheindlin ruled that discovery of most electronic data does not justify cost-shifting, but discovery of certain hard-to-access data, like those found on backup tapes, can be severely limited absent cost-shifting.
The New York Times article is here, and the 39-page decision is here.