The
Zubulake decisions are of
particular interest in the United
States in light of Judge
Scheindlin’s knowledge of the
subject and due to the opinions
arising from the influential
Southern District of New York,
both of which have provided
American lawyers with new best
practices relating to both the
legal and technical aspects of
electronic discovery.
Links to the five opinions are
as follows:
- ZUBULAKE I, MAY 13,
2003:
Zubulake v. UBS Warburg, 217
F.R.D. 309 (S.D.N.Y. 2003).
- ZUBULAKE II
(Please note: this does not
relate to electronic
disclosure): Zubulake v. UBS
Warburg, No. 02 Civ. 1243, 2003
WL 21087136 (S.D.N.Y. May 13,
2003).
- ZUBULAKE III, JULY
24, 2003:
Zubulake v. UBS Warburg, 216
F.R.D. 280 (S.D.N.Y. 2003).
- ZUBULAKE IV, OCTOBER
22, 2003:
Zubulake v. UBS Warburg, 220
F.R.D. 212 (S.D.N.Y. 2003).
- ZUBULAKE V:
Zubulake v. UBS Warburg, 2004 WL
1620866 (S.D.N.Y. July 20,
2004).
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).
ZUBULAKE 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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