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The eDiscovery Paradigm Shift

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Thursday, March 6, 2008

Is Zublake Relevant in 2008?

With the maturation of records management standards, the evolution of Evidence Lifecycle Management (ELM) and the decrease in the cost of online storage technology, is the relevance of some of the Zubulake rulings ready to be challenged? Or, is it still the "Gold Standard" for eDiscovery? What do you think?

Zubulake Overview
During 2003 and 2004, United States District Court Judge Shira A. Scheindlin issued five groundbreaking opinions in the case of Zubulake v UBS Warburg that are considered the first definitive opinions on a wide range of electronic discovery issues. It was, using the words from my Blog, a paradigm shift in eDiscovery.

The eDiscovery issues that were defined by these decision include; (1) the scope of a party's duty to preserve electronic evidence during the course of litigation; (2) an attorney's duty to monitor their clients' compliance with electronic data preservation and production; (3) data sampling; (4) the ability for the disclosing party to shift the costs of restoring “inaccessible” back up tapes to the requesting party; and, (5) the imposition of sanctions for the spoliation (or destruction) of electronically stored information/evidence.

Zubulake I, II, III
Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. 2003). In a gender discrimination suit against her former employer, the plaintiff requested that the defendant produce "[a]ll documents concerning any communication by or between UBS employees concerning the plaintiff." The defendant produced 350 pages of documents, including approximately 100 pages of email. The plaintiff knew that additional responsive email existed that the defendant had failed to produce because she, in fact, had produced approximately 450 pages of email correspondence. She requested that the defendants produce the email from archival media. Claiming undue burden and expense, the defendant urged the court to shift the cost of production to the plaintiff, citing the Rowe decision. Stating that a court should consider cost-shifting only when electronic data is relatively inaccessible (such as in this case), the court considered the Rowe 8-factor cost shifting test. The court noted that the application of the Rowe factors may result in disproportionate cost shifting away from large defendants, and the court modified the test to 7 factors: (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 issue at stake in the litigation and; (7) the relative benefits to the parties of obtaining the information. The court ordered the defendant to produce, at its own expense, all responsive email existing on its optical disks, active servers, and five backup tapes as selected by the plaintiff. The court determined that only after the contents of the backup tapes are reviewed and the defendant's costs are quantified, the court will conduct the appropriate cost-shifting analysis. See also Zubulake v. UBS Warburg, 216 F.R.D. 280 (S.D.N.Y. 2003).

Zublake IV
Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003). In the restoration effort that occurred according to previous e-discovery decisions in the matter, the parties discovered that certain backup tapes were missing and that emails had been deleted. The plaintiff moved for evidentiary and monetary sanctions against the defendant for its failure to preserve the missing tapes and emails. The court found that the defendant had a duty to preserve the missing evidence, since it should have known that the emails may be relevant to future litigation. Although the plaintiff did not file her charges until August 2001, by April of that year, "almost everyone associated with Zubulake recognized the possibility that she might sue," the court wrote. The court also found that the defendant failed to comply with its own retention policy, which would have preserved the missing evidence. The judge found that although the defendant had a duty to preserve all of the backup tapes at issue, and destroyed them with the requisite culpability, the plaintiff could not demonstrate that the lost evidence would have supported her claims. Therefore, it was inappropriate to give an adverse inference instruction to the jury. Even though an adverse inference instruction was not warranted, the court ordered the defendant to bear the plaintiff's costs for re-deposing certain witnesses for the limited purpose of inquiring into the destruction of electronic evidence and any newly discovered emails.

Zubulake V
Zubulake v. UBS Warburg, 2004 WL 1620866 (S.D.N.Y. July 20, 2004). During an ongoing discovery dispute in an employment discrimination case, the employee moved for sanctions against the employer for failing to produce backup tapes containing relevant emails and for failing to produce other relevant documents in a timely manner. See Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003). In this latest motion, the employee 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. As such, the employee requested sanctions in the form of an adverse inference jury instruction. Determining that the employer had wilfully deleted relevant emails despite contrary court orders, the court granted the motion for sanctions and also ordered the employer to pay costs. 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.

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Wednesday, March 5, 2008

The Art and Science of Legal Holds

Preservation of potentially relevant ESI in 2008 is no longer an option. However, how to preserve that ESI has become an interesting debate from both an art and science perspective. It wasn't that many years ago the this entire field was reactive in nature and therefore enabled important information to slip through the cracks.

Then, in the wake of Zubulake and the revisions to the FRCP, the Fortune 5000 began to get serious about managing preservation. Hold notices and confirmations of compliance have historically been the lowest-cost method of preserving information and demonstrating good faith. But, after spending many hours inside Fortune 5000 organizations discussing document management, data retention policy strategies and the practical application of leading edge preservation and collection technology, I can help but wonder how effective hold notices have been.

In fact, I would suspect that despite the best intentions of outside counsel, corporate counsel and IT, hold notices have actually alerted potential custodians to take steps to avert the collection process. As such, and with the current crop of more financially palatable proactive collection and storage technology such as Kazion and WorkProducts, preserving data under a well thought out data retention plan is becoming more attractive.

Add in sophisticated hold management and legal holds become much more of a science and less of an art.

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