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Between 2003 and 2005, judge Shira Scheindlin from the United States District Court for the Southern District of New York issued a series of groundbreaking opinions in the field of electronic discovery. The plaintiff Laura Zubulake filed suit against her former employer UBS, alleging gender discrimination, failure to promote, and retaliation. Judge Shira Sheindlin's rulings comprise some of the most often cited in the area of electronic discovery, and were made prior to the 2006 amendments to the Federal Rules of Civil Procedure. The relevant opinions in the field are known as Zubulake I, Zubulake III, Zubulake IV and Zubulake V.

Summary

Zubulake I and III

In an employment discrimination suit against her former employer, Laura Zubulake, the plaintiff, argued that key evidence was located in various emails exchanged among employees of UBS, the defendant. Initially, the defendant produced about 350 pages of documents, including approximately 100 pages of email. However, the plaintiff alone had produced approximately 450 pages of email correspondence. Laura requested UBSto locate the documents that existed in backup tapes and other archiving media.

The defendant, arguing undue burden and expensive, requested the court to shift the cost of production to the plaintiff, citing the Rowe decision . The court stated that weather the production of documents is unduly burdensome or expensive "turns primarily on whether it is kept in an accessible or inaccessible format ". The court concluded that the issue of accessibility depends on the media on which data are stored. I described five categories of electronic repositories: (1) online data, including hard disks; (2) near-line data, including optical disks; (3) offline storage, such as magnetic tapes; (4) backup tapes; (5) fragmented, erased and damaged data. The last two were considered inaccessible, that is, not readily available and thus subject to cost-shifting. The court, then discussing the Rowe decision (the balance test), concluded that is needed modification and created a new seven-factor test :

1. The extent to which the request is specifically tailored to discover relevant information;
2. The availability of such information from other sources;
3. The total cost of production, compared to the amount in controversy;
4. The total cost of production, compared to the resources available to each party;
5. The relative ability of each party to control costs and its incentive to do so;
6. The importance of the issues at stake in the litigation; and
7. The relative benefits to the parties of obtaining the information.

The defendant was ordered to produce, at its own expense, all responsive email existing on its optical disks, servers, and five backup tapes as selected by the plaintiff. The court would only conduct a cost-shifting analysis after the review of the contents of the backup tapes.

After the results of the sample restoration, the both parties wanted the other to fully pay for the remaining backup email. The sample cost the defendant about $19,003 for restoration but the estimate cost for the production was $273,649, including attorney and paralegal review costs. After applying the 7–factor test, it determined that the plaintiff should account for 25 percent of the restoration and searching costs, excluding attorney review costs.

Zubulake IV

During the restoration effort, as described in the court's prior opinions (see Zubalake I and III), the parties got to know that some backup tapes were not anymore available. The parties also concluded that relevant email created after the initial proceedings had been deleted from UBS´s email system and were only accessible on backup tapes. The plaintiff then sought an order requiring UBS to pay for the total costs of restoring the remaining of backup tapes. In addition, Laura Zubulake sought an adverse inference instruction against UBS and the costs for re-depositing some individuals due to the destruction of evidence. The court found that the defendant had a duty to preserve evidence since it should have known that it would be relevant for future litigation. However, the court found that the plaintiff failed to demonstrate that the lost evidence supported the adverse inference instruction claim. The court ordered the defendant to cover the costs as claimed by the plaintiff.

Zubulake V

Here, the court concluded that UBS had failed to take all necessary steps to guarantee that relevant data was both preserved and produced, and granted the plaintiff's motion for sanctions. Specifically, the court ruled that the jury would be given an adverse inference instruction with respect to deleted emails, that UBS pay the costs of any depositions or re-depositions required by its late production of email, and that UBS reimburse plaintiff for the costs of the motion. The plaintiff contended that the employer, who recovered some of the deleted relevant emails, prejudiced her case by producing recovered emails long after the initial document requests. Furthermore, some of the emails were never produced, including an email that pertained to a relevant conversation about the employee.

The court further noted that defense counsel was partly to blame for the document destruction because it had failed in its duty to locate relevant information, to preserve that information, and to timely produce that information. In addressing the role of counsel in litigation generally, the court stated that "[c]ounsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched".

Specifically, the court concluded that attorneys are obligated to ensure all relevant documents are discovered, retained, and produced. Additionally, the court declared that litigators must guarantee that identified relevant documents are preserved by placing a "litigation hold" on the documents, communicating the need to preserve them, and arranging for safeguarding of relevant archival media.

The Outcome

The court concluded that defendant acted willfully in destroying relevant information and failing to follow the instructions of counsel. As a result, Judge Scheindlin ordered an adverse inference instruction against UBS Warburg. The court held that the jury should presume that missing email contained information unfavorable to UBS. In addition, the court awarded plaintiff monetary sanctions for reimbursement of costs of additional re-depositions and of the motion leading to this opinion, including attorney fees. Plaintiff also received $9.1 million in compensatory and $20.2 million in punitive damage awards.

Electronic Discovery Issues

The case has set important practices relating to both the legal and technical aspects of electronic discovery, as the relevant communication among interested parties was available in digital form. The main relevant issues raised were:

• The scope of a party's duty to preserve electronic evidence during the course of litigation;
• Lawyer's duty to monitor their clients' compliance with electronic data preservation and production;
• Data sampling;
• The ability for the disclosing party to shift the costs of restoring inaccessible media (backup tapes) to the requesting party;
• The imposition of sanctions for the spoliation of electronic evidence.

See also

• Rowe decision
• Rules of evidence
• Discovery (law)
• Electronic discovery
• Data processing architecture for e-discovery
• Moss v. Bush

References

• Cohen, Adam I. (2003). Electronic discovery: law and practice. Aspen Publishers Online, 2003. ISBN 0735530173. {{cite book}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)

• Marchetta, Anthony J.. (2004). "The Duty To Preserve Backup Tapes After Zubulake V" (PDF). Corporate Counsel. {{cite journal}}: Unknown parameter |coauthors= ignored (|author= suggested) (help); Unknown parameter |month= ignored (help)

• Sautter, Ed (2005). "The new rules on e-disclosure". New Law Journal (7198). {{cite journal}}: Unknown parameter |month= ignored (help)

• Finn, Gary (31 August 1998), "What a growing lad needs is...", The Independent, London {{citation}}: Check |url= value (help)

External links

• Official website for the U.S. District Court for the SDNY