The year was 2003. George W. Bush had just launched the first preemptive war in U. S. history; the Supreme Court decisively upheld the right of affirmative action in higher education in the landmark decision Gratz v. Bollinger and Britney Spears held the distinction as the most–searched person on Google. The 2006 amendments to the Federal Rules of Civil Procedure acknowledging the existence of e-discovery had yet to be adopted; the six Qualcomm attorneys slept peacefully and sanction-free and the only time anyone heard of anything sounding like “terabyte” or “petabyte” was when watching re-runs of “The Flintstones.”.
But in 2003, the litigation world was already undergoing an inexorable transformation by which technology and electronically stored information would become a permanent fixture in the civil discovery process. And then came Laura Zubulake. When she sued her employer for gender discrimination, Ms. Zubulake likely had little idea that her personal quest for honesty and integrity would forever impact the way lawyers, and the organizations they represent, manage and govern data—and the consequences of doing so improperly in the context of litigation. As a result, in 2003 and 2004, U.S. District Judge Shira A. Scheindlin issued a series of groundbreaking and precedent-setting opinions in the law of electronic discovery. Specifically, in Zubulake v. UBS Warburg, Judge Scheindlin wrote chapter one of the books on the following:
- The scope of a party’s duty to preserve electronic evidence in the context of litigation
- A lawyer’s duty to monitor a client’s compliance with electronic data preservation and production
- The ability of the producing party to engage in cost-shifting for the production of ESI
- The imposition of sanctions for spoliation of electronic evidence
Coming up on the 10-year anniversary of the first of the landmark Zubulake decisions, what significant changes have occurred in e-discovery law, other than the amount of data the business world generates? With terabytes practically a household word, and petabytes, exabytes and zetabytes waiting in the wings to enter into the vernacular, how much of that data do organizations need to preserve? Notwithstanding the vast volume of case law and data) that has been generated, and rules promulgated or amended since that time, Zubulake remains relevant and is called on time and again to provide the answer.
We all know the facts. And we all know that the longer the case went on, the more poor conduct on the defendant’s part was uncovered, ultimately resulting in an adverse inference instruction against Warburg for what the court determined to be willful spoliation. In Zubulake I and III, the court took up the notion of cost-shifting. The defendant, arguing undue burden and expense and citing Rowe Entm't, Inc. v. William Morris Agency, Inc., requested that cost of production be shifted to the plaintiff. The court stated that whether the production of documents is unduly burdensome or expensive "turns primarily on whether [information] is kept in an accessible or inaccessible format.” The court noted that the application of the Rowe factors may result in disproportionate cost-shifting away from large defendants and modified the test to seven factors.
In Zubulake IV, the court set what has come to be the standard for data preservation: “Once a party reasonable anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.” The court indicated that the scope of preservation is to be informed by Federal Rule of Civil Procedure 26.
In Zubulake V, addressing the role of counsel in litigation generally, the court stated that "counsel 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.
Despite the brief summaries of these cases here, their legacy is long. Zubulake I has been cited 765 times in 134 opinions in both federal and state cases within and beyond New York’s geographic and official jurisdiction. Similar high numbers are reported for Zubulake III, IV and V. Granted, it’s not Erie Railroad Co. v. Tompkins, but Zubulake hasn’t been around as long either. As proof of its continuing potency, within the last year, New York’s appellate courts issued three significant e-discovery decisions, all of which relied on and adopted standards from Zubulake decisions.
In VOOM HD Holdings LLC v. Echostar Satellite, LLC the 1st Department explicitly adopted Zubulake IV’s standard regarding a party's preservation obligations; the cost-shifting standard of Zubulake I was applied in a second 1st Department case, U.S. Bank Natn’l Assoc. v. GreenPoint Mortgage Funding, with the court holding that that the cost of production of ESI and other discovery must generally be borne by the producing party, thus resolving an important unsettled issue among New York state courts. InTener v. Cremer, the court looked to Zubulake I and III for guidance on the issue of production of inaccessible data. And outside New York, citing Zubulake I as the “leading opinion” on cost-shifting, U.S. District Judge Michael Baylson of the Eastern District of Pennsylvania, ruled last month in a case of first impression (Vaughn v. LA Fitness International) that plaintiffs must pay the costs of additional discovery in a pre-class certification discovery dispute.
We can debate the application of tort-based principles to the imposition of sanctions and words such as “per se” made infamous by Judge Scheindlin in “Zubulake Revisited.” These concepts should continue to be vetted in our courts unless and until the Civil Rules Committee adopts certain amendments currently on the table in an effort to bring consistency and clarity in e-discovery law. But the obligation of preservation when litigation is reasonably anticipated remains. And 10 years later, while Britney Spears taken a back seat to Kim Kardashian, Laura Zubulake and her gender discrimination suit still play an integral part of our e-discovery jurisprudence.