The ABA Journal recently took an insightful look back at the dynamic eDiscovery Zubulake v UBS Warburg case, which is now 10 years old. Zubulake is the case that forced the legal world to take eDiscovery seriously, and arguably created a new industry with law and tech.
With this passing anniversary, we’re going to look back on the biggest developments in the past decade since that landmark decision. If you’re a lawyer, litigator, or litigation technologist, I’m sure you have your own thoughts on this issue.
Zubulake Kicks It Off
Zubulake was an impactful ruling and game changer for the new area of eDiscovery: it forced lawyers and their clients to take electronic evidence seriously. The case was assigned to Judge Shira Scheindlin, who created a landmark ruling from a seemingly standard employment case. When the defendants begrudgingly produced emails during discovery, Judge Scheindlin authored five rulings spanning three years and hundreds of pages – just to decide when email is discoverable.
The rulings in the Zubulake case were so potent, that they effectively kick-started the eDiscovery industry into existence. The milestone developments of this case are evident from the widespread growth of technological eDiscovery innovation and amendments made to the Federal Rules quoting many of Judge Scheindlin’s sentiments.
Andersen Consulting Goes Out of Business
Technically, Andersen went out of business before Zubulake really got going, but the fallout took years to be appreciated through the legal world. Arthur Andersen LLP, one of the former “big five” consulting firms went out of business after it was caught indefensibly deleting Enron documents. Since that time, records managers have invested a lot of time and energy in developing “defensible deletion” strategies and jump started the Information Governance industry.
Morgan Stanley Pays the eDiscovery Piper
A lot of lawyers have been sanctioned for eDiscovery failures, but this is the one that shocked the profession. In 2005, Morgan Stanley was hit with a $1.5 billion judgment for its role as financial adviser to the failed Sunbeam Corp., plus $15 million in fines stemming from defense lawyers’ inability to produce electronic documents in court. Among other things, Morgan Stanley’s lawyers failed to adequately comply with an electronic discovery request when a programming glitch caused its e-discovery software to ignore as many as 7,000 e-mails. The ruling was eventually reversed, but many lawyers were surprised to discover that they could be fined or sanctioned this heavily for failing to perform eDiscovery effectively.
Federal Rules Get an eDiscovery Update
In 2006, a new set of rules were put in place to codify the emerging eDiscovery rules into the Federal Rules of Civil Procedure. These amendments have been widely adopted by state courts as well. What the amendments have done is recognize that electronic information must be treated on equal footing with paper documents. At the heart of the amendments is the seemingly simple new language in Rule 34 that adds “electronically stored information” to the list of what one party in a case may ask that another party produces as part of the discovery process.
The addition of those three words has irrevocably changed the very nature of discovery, effectively making anything electronic- from Facebook posts to databases- discoverable. Even more importantly, revisions to Rules 16(b) and 26(f) of the Federal Rules of Civil Procedure mandated that the parties address eDiscovery issues early in a case at a “meet and confer” conference. The first discussions about those issues must begin when the parties hold their initial discovery planning conference and must be addressed at pretrial scheduling conferences with the judge. Look for even more new rules to be codified in coming years.
Sedona Asks Lawyers to Get Along
The Sedona Conference is a non-profit legal research group. It published the Cooperation Proclamation in 2008 with the premise that if lawyers drop the gladiatorial style of litigation they learned in law school and work together during the discovery phase, “greater time, and attention (and money) can be spent on litigating the merits of the underlying dispute.” Many lawyers ignored or laughed off the idea. That is, until influential magistrate judges endorsed the principles in their court rulings. Now, it’s up to lawyers to figure out how to share electronic evidence more effectively or suffer adverse rulings.
TREC Peers Into the Future
Recognizing that the volume of evidence in eDiscovery can be overwhelming, the Text Retrieval Conference (TREC) Legal Track launched to test different types of computer searches and create industry best practices for searching electronic records in litigation. The TREC Legal Track found that Boolean keyword searching, which is the current computer technology lawyers use to find documents for litigation, missed 78 percent of relevant documents. That figure was nearly identical to the results of the only other major study done on the subject, the Blair and Maron study from 1985. The findings were of little more than academic interest until Judge Andrew Peck endorsed TREC’s research in Da Silva Moore v. Publicis Groupe, No. 11 Civ. 1279 (S.D.N.Y. Feb. 8, 2012), approving the use of advanced search technology to more effectively review documents.
Zubulake Comes Full Circle
Bringing the decade full circle, we wrap up with our old Zubulake friend, U.S. District Judge Shira A. Scheindlin. Judge Scheindlin tightened and updated her Zubulake rulings in Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 685 F. Supp. 2d 456 (S.D.N.Y. 2010). Once again, she held that the duty to preserve documents, including electronically stored information (ESI), arises when litigation is ”reasonably anticipated.” She also reiterated that a failure to make reasonable efforts to preserve electronic evidence for litigation could mean sanctions, negative inferences, and even fines for lawyers and their clients.
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