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:
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.