e-Lessons Learned

Given our recent treatment of Zubulake as the “ebook of Genesis” on the creation of ediscovery, it is important to note that sanctions for ediscovery mishaps existed even before the term was coined.

This case arose out of a class action lawsuit brought by Prudential policy holders alleging that Prudential engaged in a scheme to sell life insurance through deceptive practices. On September 15, 1995, the court entered its first Order requiring that all parties preserve all documents and other records containing information potentially relevant to the litigation. This opinion relates to the multiple instances of document destruction by Prudential employees and agents after the issuance of this Order.

In 1994, pursuant to a regulatory directive issued to most life insurance companies, Prudential undertook a sweep of its sales materials to remove any unauthorized materials. To accomplish this, the company issued a manual that outlined the procedures to be followed in order to identify and remove all unauthorized sales materials. The materials specifically called for the destruction of all materials no longer authorized by Prudential. Continue reading »

Defendant: I object!

Judge: On what grounds?

Defendant: The documents sought are not reasonably accessible.

Judge: Why?

Defendant: I don’t know, they just aren’t.

Judge: You think that’s a good enough reason? Objection DENIED!

And that, my fellow readers, is basically how it went in City of Seattle v. Professional Basketball Club. Continue reading »

As many e-discovery scholars may know, U.S. District Judge Shira A. Scheindlin of the Southern District of New York was the author of the watershed e-discovery opinion, Zubulake v. UBS Warburg LLC. However, Judge Scheindlin had been pondering e-discovery issues well before Zubulake landed on her docket. In 2000, Judge Scheindlin and Jeffrey Rabkin, a former law clerk, wrote the above article regarding the applicability of Rule 34 of the Federal Rules of Civil Procedure to electronic documents as the Rule existed before it was amended in 2006. This post will analyze Judge Scheindlin’s main points and how they’ve been addressed in the amendment to Rule 34.

Scheindlin Point 1: Define the Scope of Rule 34(a) to Include All Forms of Electronic Evidence

Prior to 2006, Rule 34(a) allowed litigants to request the production of “any designated documents,” which included “writings, drawings, graphs, charts, photographs, phonorecords, and other data compilations from which information can be obtained.” Judge Scheindlin noted that the italicized provision of Rule 34 (which was written in 1970) implied that a request for electronic data, or “data compilations,” could be satisfied by merely printing out such data onto paper. Continue reading »

This is the fifth chapter in our Zubulake series.

Zubulake’s suit against UBS was your typical, run on the mill, employment discrimination case. However, along the way it has now become one of the seminal e-discovery cases.

Zubulake V is concerned with the plaintiff’s request for electronically stored information (“ESI”), in particular, e-mails. This motion was made after two years of attempting to get the information that she requested. The court was faced with the issue of whether to issue sanctions on UBS for its failure and delay in producing relevant evidence and if so whether UBS acted negligently, recklessly, or willfully.

The UBS’s lawyers did make some efforts to preserve evidence. They told employees to not delete relevant information. They instructed IT personnel to preserve back up tapes. And they met with key individuals and explained that the need to preserve all relevant evidence. However, it eventually came to light that these efforts were not enough. Continue reading »

Our fourth installment of our Zubulake series addresses two key critical issues in the e-discovery process: (1) the scope of the duty to preserve and (2) remedies for failure to preserve.

(1) Scope of the Duty to Preserve

The Zubulake IV opinion states that upon anticipation of litigation, a party to a lawsuit has the

“…duty to preserve what it knows or reasonably should know, is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence is reasonable likely to be requested during discovery and/or is the subject of a pending discovery request.”

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Background

In Zubulake I, Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. 2003), Laura Zubulake was seeking evidence stored on UBS’s backup tapes. Retrieval of the evidence was going to be costly and time-consuming. The dispute in Zubulake I centered on which party should pay for the costs incurred in restoring and producing these backup tapes.

As part of the preliminary determination, the court ordered the UBS to produce, at its own expense, all requested emails 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 were reviewed and the defendant’s costs were quantified, the court would conduct the appropriate cost-shifting analysis using a seven factor test.The seven factors elucidated in Zubulake I (in descending order of importance) included:

(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.

Enter Zubulake III
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Often times, the posts on this blog talk about a specific lesson to be learned related specifically to e-discovery rules, practice, and procedure. It can be easy to forget that in many cases, the e-discovery part of the litigation is not the end all and be all of the case, but it rather is interrelated with other substantive areas of law. This was especially true in the Zubulake v. UBS Warburg LLC opinion cited above, one of the many in the seminal Zubulake case.

In this 2003 Zubulake v. UBS Warburg LLC opinion, the plaintiff, Laura Zubulake, moved for an order permitting her to release the transcript of Christopher Behny’s deposition to securities regulators. Behny was the Manager of Global Messaging for UBS. The Southern District of New York had previously ordered UBS to produce an individual knowledgeable about UBS’s email retention and retrieval policies. After UBS produced Behny for a deposition, Behny testified on the structure of UBS’s backup system, its backup tape destruction/retention policy, and the feasibility and estimated cost of restoring the data that Zubulake requested. Continue reading »

For those of you that have been living under an e-discovery rock, and therefore have never heard of Zubulake, please continue reading.

The Zubulake decisions in 2003 through 2004 shook the world of e-discovery. Litigators, law professors, and all kinds of pundits, tuned in and took notice: U.S. District Judge Shira Scheindlin, one of the most brilliant trial judges on the bench today, and unfortunately for UBS, an e-discovery expert threw the gavel at UBS on this one. Zubulake walked away from this case with close to $30 million and UBS was left with a deep hole and lots of sanctions.

But we are skipping ahead in our saga. The case started as a common gender discrimination suit brought by Zubulake against her former employer, UBS. Continue reading »

Personal items. Patient health information. The lockbox. The bedroom. Password protected online content?

People generally associate these things with a sense of privacy. They seem secure in the sense that others need permission to view or handle the information contained within. At the very least, one does not expect that his or her boss would be able to stumble upon this kind of information through a simple search on Google. But with the increasing number of employees who are terminated because of their online social networking profiles, how far is an employer’s reach into an employee’s personal information? Brian Pietrylo’s lawsuit against Houston’s Restaurant, which is scheduled for trial next month in New Jersey, may bring some clarity to the issue as it relates to online social networks.
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Jonathan Redgrave

I recently had the opportunity to do a “behind the scenes” type phone interview of Jonathan Redgrave, the co-author of the article “Special Masters And E-Discovery: The Intersection Of Two Recent Revisions To The Federal Rules Of Civil Procedure.” I was very impressed by the enthusiasm that Mr. Redgrave showed about this subject, throughout our conversation.

Note – I have paraphrased the interview responses as accurately as my memory and typing skills allowed. Enjoy!

SP: How did you become interested in electronic discovery?

JR: I was always interested in computers and technology. I was one of the first ones in my high school to use a personal computer. I also owned one of the first Macs. I remained interested in technology throughout law school and beyond, utilizing new technology in litigation.

SP: What inspired you to write this law review article?

JR: The co-author Judge Shira Scheindlin is one of the main reasons for this. She is a great judge and we had worked together before, including special masters and e-discovery so we thought of combining our knowledge regarding both.

SP: What do you hope judges take away from the article?

JR: Well I hope that judges take away a few points from the article: 1) Not every case requires a special master but there are some where the need is significant and they should not be overlooked; and 2) Not to be afraid of special masters. They are really here to help the parties and the judge with significant or complex e-discovery issues. Special masters are an added tool so we should not be wary of incorporating them in the judicial process.
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