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.

Labels: Discovery, Distruction of Evidence, eDiscovery, ELM, ESI, Evidence Lifecycle Management, FRCP, Litigation, United States District Courts, Zubulake

posted by Charles Skamser @ 8:41 AM 0 Comments

US District Courts Begin to Address eDiscovery

Following on the heals of the December 2006 changes to the Federal Rules of Civil Procedure (FRCP), many of the US District Courts have enacted special rules addressing eDiscovery. Following is an updated list of the US District Court local rules, standards, guidelines and forms that specifically address eDiscovery issues:

Eastern and Western Districts of Arkansas Local Rule 26.1 Outline for Fed. R. Civ. P. 26(f) Report

District of Alaska Local Form 26(f): Scheduling and Planning Conference Report (see item 4(B)) Local Rule 16.1 Pre-Trial Procedures (requiring use of Local Form 26(f) or one substantially similar)

Northern District of California Standing Order For All Judges Of The Northern District Of California: Contents Of Joint Case Management Statement (see item 6) Local Rule 16-9 Case Management Statement and Proposed Order (requiring parties' Joint Case Management Statement to include all topics listed in Standing Order)

District of Colorado Appendix F: Scheduling Order Instructions for Preparation of Scheduling Order

District of Connecticut January 19, 2007 Order Amending Local Rules Local Rules 16(b), 26, 37 and Form 26(F)

District of Delaware Default Standards for Discovery of Electronic Documents

Middle District of Florida Civil Discovery Practice Handbook (see Part VII “Technology”)

Southern District of Florida Rule 16.1 Pretrial Procedure in Civil Actions Rule 26.1 Discovery and Discovery Material (Civil) Appendix A: Discovery Practices Handbook (see Part III, in particular)

Southern District of Georgia Rule 26(f) Report

Central District of Illinois Magistrate Judge Byron G. Cudmore's Rule 16 Scheduling Order Magistrate Judge David G. Bernthal’s Suggested Form for Proposed Discovery Plan (Urbana Division)

Northern District of Indiana Report of Parties' Planning Meeting

Southern District of Indiana Uniform Case Management Plan (see Part III(K)) Rule 16.1 Pretrial Procedures (requiring use of Uniform Case Management Plan)

Northern and Southern Districts of Iowa Scheduling Order and Discovery Plan Instructions and Worksheet for Preparation of Scheduling Order and Discovery Plan and Order Requiring Submission of Same Local Rule 16.1 Scheduling Order and Discovery Plan (requiring use of form)Local Rule 26.1 Pretrial Discovery and Disclosures (requirement to submit discovery plan satisfied by submission of form Scheduling Order and Discovery Plan)

District of Kansas Guidelines for Discovery of Electronically Stored Information Initial Order Regarding Planning and Scheduling

District of Maryland Suggested Protocol for Discovery of Electronically Stored Information

Eastern District of Missouri Local Rule 3.01. Federal Rule of Civil Procedure 26

District of New Hampshire Local Rule 26.1 Discovery Plan Civil Form 2: Sample Discovery Plan

District of New Jersey Local Rule 26.1 Discovery (see subpart (d))

Northern District of Ohio Local Rules, Appendix K: Default Standards for Discovery of Electronically Stored Information (“E-Discovery”) Rule 16.3 Track Assignment and Case Management Conference

Southern District of Ohio Rule 26(f) Report of Parties (Western Division at Dayton) Rule 26(f) Report of Parties (Eastern Division)

Eastern District of Pennsylvania Report of Rule 26(f) Meeting Order Governing Electronic Discovery (District Judge Timothy J. Savage) District Judge Timothy J. Savage’s Scheduling and Motion Policies and Procedures

Middle District of Pennsylvania Local Rule 26.1 Duty to Investigate and Disclose

Western District of Pennsylvania Local Rule 16.1.1 Scheduling and Pretrial Conferences - Generally (see item (B), requiring use of Appendix B form)Appendix B: Fed. R. Civ. P. 26(f) Report of the Parties (see item 11)

Eastern District of Tennessee Form Scheduling Order (Knoxville) (Senior District Judge Leon Jordan) (see Item 4(d)) Form Scheduling Order (Knoxville) (District Judge Thomas A. Varlan) (see Item 4(d)) Form Scheduling Order (Chattanooga) (Magistrate Judge Susan K. Lee) (see Item 5(a))

Western District of Tennessee Form Scheduling Order (Western Division) (Magistrate Judge Diane K. Vescovo)

Eastern District of Texas Notice of Scheduling Conference, Proposed Discovery Order, and Proposed Dates for Docket Control Order (Magistrate Judge John D. Love) (see item 2(A))

Northern District of Texas Miscellaneous Order No. 62 (Dallas Division, Patent Cases) (see item 2.1(a)(2))

District of Vermont Local Rule 26.1 Discovery Local Form Rule 26.1(b): Stipulated Discovery Schedule/Order

Southern District of West Virginia Report of Parties’ Planning Meeting Local Rule 16.1 Scheduling Conferences (requiring use of court’s form)

District of Wyoming Local Rule 26.1 Discovery and Appendix D: Rule 26 Conference Checklist (see subpart (e) of local rule)

For more information on the local rules of United States District Courts, click here to see a page with links to all the District Courts’ web pages.

Labels: Discovery, eDiscovery, FRCP, United States District Courts

posted by Charles Skamser @ 12:33 PM 0 Comments