This week on Discovering E Discovery, I'd like to talk about the Sedona Conference.
The Sedona Conference is a research and educational institute based in Sedona, Arizona. The Conference strives to improve law and policy in the areas of antitrust law, complex litigation and intellectual property rights.
The Sedona Conference's first Working Group is called 'Electronic Document Retention and Production', and it deals with the subject of e-discovery. Starting in 2002, a lot of very smart people have met together to talk about current issues in, and challenges to, the world of electronic discovery.
Working Group 1 released its first publication in 2003, and it was cited by Judge Scheindlin in the Zubulake cases.
The Sedona Conference's website can be found here. The documents published by Working Group 1 are found here. They are a very valuable resource for e-discovery professionals.
Everyone who works in electronic discovery should be familiar with the Sedona conference, and its Working Group 1!
(A short post this week, but Discovering E Discovery is in a brief summer hiatus.)
Showing posts with label Scheindlin. Show all posts
Showing posts with label Scheindlin. Show all posts
Thursday, July 29, 2010
Monday, May 24, 2010
Aftermath of the Zubulake decision
The Zubulake V decision was released in the summer of 2004.
In her decision, Judge Scheindlin created a framework for handling electronic discovery requests. She described what she considered the proper way to respond to requests for documents.
My electronic discovery group looked at the judge's recommended model, and liked what we saw. At the time, there weren't many 'best practices' guides we could rely on, and especially not any that were issued by a judge, and by a judge in our jurisdiction. So, we looked to the Zubulake decision to show us the way.
What is Judge Scheindlin's model?
She recommended the following:
1. A party's counsel should issue a 'litigation hold' to notify employees who may have relevant information that they could not destroy this information. The litigation hold should be kept 'fresh' in the minds of current employees, and be conveyed to new employees.
2. Counsel must talk to the 'key players' in the litigation, to make sure they understand the litigation hold, and to find out whether these employees store relevant information in non-standard or unusual places. If so, this data must also be preserved.
3. Counsel should obtain a copy of the relevant information. Counsel should also ensure backup media is kept safe, either by taking possession of it, or by telling the company's technology professionals that they must keep the relevant backup media separate from other media, and especially not to lose or destroy it.
What did we learn in following the model? Most importantly: Communication Is Key!
- A party's counsel must keep in close touch with the company's IT people, and keep reminding them they must make sure no relevant data is lost or destroyed.
- We also found that counsel must develop a deep understanding of how and where the company's data is stored. If you don't know what to include in a litigation hold, you may overlook vital information. As the defendant in Zubulake found, this is a bad thing.
- Finally, we had to ask key employees if they stored any data in any non-standard way. Different departments at my firm had different rules about storing company data, and it seemed as if each group of employees stored data in its own, unique way. It was a challenge to make sure we didn't overlook any source of relevant data. But it was a fun challenge, and each case was new and never a routine.
While the Zubulake case was the beginning of my discovery of e-discovery, it was only the beginning. In the weeks to come, I'll talk about other influences like the EDRM, the 2006 changes to the Federal Rules of Civil Procedure, and more...
(Post updated 5/28 to generalize names of companies.)
Monday, May 17, 2010
E-Discovery Basics: Zubulake V
The fifth and final decision of the Zubulake case was released in the summer of 2004, and it was a shocker.
(For background on Zubulake, please see my discussion in these four earlier posts.)
Zubulake had an effect on my world - it didn't exactly rock it, but it changed the way many legal departments viewed electronic discovery, including the department where I worked at Bear, Stearns & Co.
Some personal background: in early 2003, I had started working in the litigation group of the Bear Stearns Legal Department, just as the Zubulake decisions were being released. We read the Zubulake decisions as the judge issued them. The fifth Zubulake ruling worried a whole lot of people.
Why?
Well, the "adverse inference instruction" is why - the atomic bomb of the litigation world.
What happened here?
When Zubulake's legal team re-deposed certain UBS employees, as ordered by the judge in Zubulake IV, they found out about many more emails: emails that were improperly deleted and emails that were supposed to have been given to Zubulake almost two years earlier.
Even worse for UBS, the depositions showed that the deleted emails were important to the case, and they had been lost, forever. The back-up tapes that held copies of these emails were gone too.
The depositions also revealed that UBS had other emails important to Zubulake's case, but never turned them over to her.
Zubulake asked the judge for an adverse inference instruction to the jury. For the judge to grant this request, UBS had to have an obligation to preserve relevant evidence which was lost or destroyed, and it had to do so with a "culpable state of mind". In the court's jurisdiction, a "culpable state of mind" included not only willful or reckless behavior, but also negligence (although Zubulake then had to prove that the evidence lost was relevant to her case).
Ultimately, the judge found that UBS counsel did not do everything it should have done to preserve evidence, and that UBS employees also ignored much of the advice given to them by their counsel. Therefore, the judge decided that UBS willfully lost the evidence, and that under the legal standard, the lost information was presumed to be not only relevant to the Zubulake case, but favorable to Zubulake. The jury was instructed of this decision by the judge.
How did the case end? The jury awarded Zubulake almost $30 million in damages for her gender discrimination claim: about $10 million in compensatory damages, and about $20 million in punitive damages. A nice outcome for Zubulake, and not so nice for UBS.
Next week, I'll talk about my reactions to the Zubulake case, and some of the lessons learned...
(Zubulake V is cited as: Zubulake v. UBS Warburg, 229 F.R.D. 422 (S.D.N.Y. 2004))
(For background on Zubulake, please see my discussion in these four earlier posts.)
Zubulake had an effect on my world - it didn't exactly rock it, but it changed the way many legal departments viewed electronic discovery, including the department where I worked at Bear, Stearns & Co.
Some personal background: in early 2003, I had started working in the litigation group of the Bear Stearns Legal Department, just as the Zubulake decisions were being released. We read the Zubulake decisions as the judge issued them. The fifth Zubulake ruling worried a whole lot of people.
Why?
Well, the "adverse inference instruction" is why - the atomic bomb of the litigation world.
What happened here?
When Zubulake's legal team re-deposed certain UBS employees, as ordered by the judge in Zubulake IV, they found out about many more emails: emails that were improperly deleted and emails that were supposed to have been given to Zubulake almost two years earlier.
Even worse for UBS, the depositions showed that the deleted emails were important to the case, and they had been lost, forever. The back-up tapes that held copies of these emails were gone too.
The depositions also revealed that UBS had other emails important to Zubulake's case, but never turned them over to her.
Zubulake asked the judge for an adverse inference instruction to the jury. For the judge to grant this request, UBS had to have an obligation to preserve relevant evidence which was lost or destroyed, and it had to do so with a "culpable state of mind". In the court's jurisdiction, a "culpable state of mind" included not only willful or reckless behavior, but also negligence (although Zubulake then had to prove that the evidence lost was relevant to her case).
Ultimately, the judge found that UBS counsel did not do everything it should have done to preserve evidence, and that UBS employees also ignored much of the advice given to them by their counsel. Therefore, the judge decided that UBS willfully lost the evidence, and that under the legal standard, the lost information was presumed to be not only relevant to the Zubulake case, but favorable to Zubulake. The jury was instructed of this decision by the judge.
How did the case end? The jury awarded Zubulake almost $30 million in damages for her gender discrimination claim: about $10 million in compensatory damages, and about $20 million in punitive damages. A nice outcome for Zubulake, and not so nice for UBS.
Next week, I'll talk about my reactions to the Zubulake case, and some of the lessons learned...
(Zubulake V is cited as: Zubulake v. UBS Warburg, 229 F.R.D. 422 (S.D.N.Y. 2004))
Monday, May 10, 2010
E-Discovery Basics: Zubulake IV
In the last few weeks, I have been discussing the Zubulake case of 2003 and 2004. Background on the case can be found in my previous installments here, here and here. If you are not familiar with the case, it is worthwhile to review these earlier blog posts.
Picking up the story, a few months after issuing her third decision in the Zubulake case, Judge Scheindlin released her fourth decision.
UBS had been restoring back-up tapes related to the case and found that some tapes were missing.
Also, UBS discovered that emails important to the case had been deleted from the UBS email system, and were now available only on back-up tape. This was a problem, as UBS had told its employees to stop deleting any emails relating to this case.
Zubulake asked the judge to impose sanctions on UBS because of this issue.
The judge decided that UBS had a duty to preserve emails related to Zubulake, and that that this duty started when it seemed very likely that Zubulake would sue UBS.
The next question addressed was: preserve which emails? The judge decided that all documents relevant to the case belonging to "key players" had to be kept by UBS.
Zubulake had requested an "adverse inference instruction" from the judge. If granted, this would end the case, as UBS would have no reasonable option but to settle with Zubulake. An adverse inference instruction is extreme - a judge tells a jury to assume that if one side destroyed evidence, then this evidence must have been very harmful to that side's case.
Judge Scheindlin decided that Zubulake could not show that the lost evidence would have supported her claims, and so she would not issue an adverse inference instruction. However, UBS did have to cover Zubulake's cost for re-deposing some witnesses on issues raised by the missing back-up tapes.
Next week, I'll wrap up my discussion of the Zubulake case.
(Zubulake IV is cited as: Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003))
Picking up the story, a few months after issuing her third decision in the Zubulake case, Judge Scheindlin released her fourth decision.
UBS had been restoring back-up tapes related to the case and found that some tapes were missing.
Also, UBS discovered that emails important to the case had been deleted from the UBS email system, and were now available only on back-up tape. This was a problem, as UBS had told its employees to stop deleting any emails relating to this case.
Zubulake asked the judge to impose sanctions on UBS because of this issue.
The judge decided that UBS had a duty to preserve emails related to Zubulake, and that that this duty started when it seemed very likely that Zubulake would sue UBS.
The next question addressed was: preserve which emails? The judge decided that all documents relevant to the case belonging to "key players" had to be kept by UBS.
Zubulake had requested an "adverse inference instruction" from the judge. If granted, this would end the case, as UBS would have no reasonable option but to settle with Zubulake. An adverse inference instruction is extreme - a judge tells a jury to assume that if one side destroyed evidence, then this evidence must have been very harmful to that side's case.
Judge Scheindlin decided that Zubulake could not show that the lost evidence would have supported her claims, and so she would not issue an adverse inference instruction. However, UBS did have to cover Zubulake's cost for re-deposing some witnesses on issues raised by the missing back-up tapes.
Next week, I'll wrap up my discussion of the Zubulake case.
(Zubulake IV is cited as: Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003))
Monday, May 3, 2010
E-Discovery Basics: Zubulake III
This week, I briefly continue my discussion of the Zubulake case, one of the most significant electronic discovery case of the 2000s.
Here's a brief recap: Laura Zubulake sued her employer (UBS) on grounds of gender discrimination. She asked for UBS emails relevant to her case. UBS said that emails relevant to the case were available only on back-up tapes, and claimed that it would be expensive to recover these emails. Judge Scheindlin, the federal court judge in the case, instructed UBS to restore a sample of back-up tapes, so that the judge could make a decision on whether to shift the costs from the defendants (UBS) to the plaintiff (Zubulake).
The judge's third decision in the case (known as Zubulake III) was released in July 2003, a couple of months after her first decision.
She applied her cost-shifting analysis and its seven-factor test (discussed in last week's post here), and decided that the plaintiff (Zubulake) would pay 25% of the costs of restoring the back-up tapes, while the defendant (UBS) would pay 75%.
However, it is important to remember that the restoration costs were much smaller than the costs of reviewing the emails to see what was there: UBS spent a lot of money to pay attorneys to look over the documents restored from the back-up tapes. The judge said that because UBS had control over these costs, it was responsible for all of them.
Zubulake III is interesting because the judge decided to shift some of the restoration costs to the plaintiff, but not the costs of reviewing the restored emails.
Next week, I'll continue my discussion of the case by looking at Zubulake IV, and hopefully, the last in the series, Zubulake V!
(Zubulake III is cited as: Zubulake v. UBS Warburg, 216 F.R.D. 280 (S.D.N.Y. 2003))
Here's a brief recap: Laura Zubulake sued her employer (UBS) on grounds of gender discrimination. She asked for UBS emails relevant to her case. UBS said that emails relevant to the case were available only on back-up tapes, and claimed that it would be expensive to recover these emails. Judge Scheindlin, the federal court judge in the case, instructed UBS to restore a sample of back-up tapes, so that the judge could make a decision on whether to shift the costs from the defendants (UBS) to the plaintiff (Zubulake).
The judge's third decision in the case (known as Zubulake III) was released in July 2003, a couple of months after her first decision.
She applied her cost-shifting analysis and its seven-factor test (discussed in last week's post here), and decided that the plaintiff (Zubulake) would pay 25% of the costs of restoring the back-up tapes, while the defendant (UBS) would pay 75%.
However, it is important to remember that the restoration costs were much smaller than the costs of reviewing the emails to see what was there: UBS spent a lot of money to pay attorneys to look over the documents restored from the back-up tapes. The judge said that because UBS had control over these costs, it was responsible for all of them.
Zubulake III is interesting because the judge decided to shift some of the restoration costs to the plaintiff, but not the costs of reviewing the restored emails.
Next week, I'll continue my discussion of the case by looking at Zubulake IV, and hopefully, the last in the series, Zubulake V!
(Zubulake III is cited as: Zubulake v. UBS Warburg, 216 F.R.D. 280 (S.D.N.Y. 2003))
Monday, April 26, 2010
E-Discovery Basics: Zubulake Part Two
Last week, I started to talk about one of the most important and influential electronic discovery cases of the past decade: Zubulake v. UBS Warburg. I'll pick up my discussion of this 2003 case where I left off...
Laura Zubulake had sued UBS, her employer, claiming gender discrimination. She asked UBS for emails relevant to her case. UBS said it did not have these emails, and that the costs of restoring its back-up tapes to recover the Zubulake emails would be very high (in the hundreds of thousands of dollars). UBS asked the court to consider first whether UBS had to give the emails to Zubulake, and if so, who had to pay the costs of getting the emails from storage on the back-up tapes.
Judge Shira Scheindlin looked to the Federal Rules of Civil Procedure, which allowed Zubulake to ask UBS for emails related to her case. The Rules presumed that UBS would have to pay the cost of recovering the emails from back-up tapes, but also gave the court the discretion to shift some or all the costs to the party asking for the emails (in this case, Zubulake).
This is the point where the case becomes very interesting to the electronic discovery world. Judge Scheindlin pointed out that in many cases involving restoring emails from a back-up tape, the party that is supposed to produce the emails argued that it would be far too expensive to recover the emails. In other words, why ask someone to pay $100,000 to find emails relevant to a case, when the case involves only $10,000? This was the argument made by many companies when they were asked for emails.
Judge Scheindlin noted that many courts had automatically assumed that electronic evidence meant much higher costs, and would deny email requests. This often ended the case, as a plaintiff couldn't get access to necessary evidence. Judge Scheindlin recognized that electronic data could be searched much more cheaply than paper documents could be read and reviewed - an office computer using a search engine could find something in seconds.
The judge created a three-step analysis:
First, how is the data stored? Is it accessible, or inaccessible?
The judge said 'accessible data' means data that is readily usable, and doesn't have to be restored. Examples include data stored on hard drives, CDs, DVDs, etc.
'Inaccessible data' means data that is on backup tapes, or has been erased or damaged. This data is inaccessible because something has to be done to it before it can be accessed. That "something" will cost time and money.
When faced with inaccessible data, the judge said that courts should consider shifting the restoration and production costs to the party asking for the data.
Second, in order to analyze whether to shift costs, the court needs to know what is in the inaccessible data. The judge suggested restoring a small sample of the requested inaccessible data to find out what is there.
Third, the judge developed a seven-step cost-shifting analysis:
1. How specifically is the request tailored to find relevant information? In other words, has the request been written so that it will discover documents relevant to the case?
2. Is this information already available from other sources?
3. What's the total cost of production, compared to the amount of the case?
4. What's the total cost of production, compared to each party's resources? (Does one party have deep pockets?)
5. Can each party control costs, and does each one want to?
6. How important are the issues at stake in the case?
7. What are the benefits to the parties of restoring the data?
The judge stressed that these seven factors are not a check-list and they don't have equal weight with each other. The first factors on the list are the most important, and they are less important as the list goes down.
The judge summarized the central questions of the seven-factor cost-shifting test as: 'does the request impose an "undue burden or expense" on the responding party?' and "how important is the sought-after evidence in comparison to the cost of production?"
In other words, "is it an undue expense?" and "is the data important enough to be worth the cost?"
Judge Scheindlin decided that UBS must produce accessible data, as UBS could do this quickly and cheaply.
The judge also decided that UBS must restore responsive emails from five back-up tapes so that the court could look at the data and begin its cost-shifting analysis.
And so ended the first Zubulake decision (known as Zubulake I). The story continues in Zubulake III! (The Zubulake II decision didn't address anything related to electronic discovery, so I won't talk about it.)
Laura Zubulake had sued UBS, her employer, claiming gender discrimination. She asked UBS for emails relevant to her case. UBS said it did not have these emails, and that the costs of restoring its back-up tapes to recover the Zubulake emails would be very high (in the hundreds of thousands of dollars). UBS asked the court to consider first whether UBS had to give the emails to Zubulake, and if so, who had to pay the costs of getting the emails from storage on the back-up tapes.
Judge Shira Scheindlin looked to the Federal Rules of Civil Procedure, which allowed Zubulake to ask UBS for emails related to her case. The Rules presumed that UBS would have to pay the cost of recovering the emails from back-up tapes, but also gave the court the discretion to shift some or all the costs to the party asking for the emails (in this case, Zubulake).
This is the point where the case becomes very interesting to the electronic discovery world. Judge Scheindlin pointed out that in many cases involving restoring emails from a back-up tape, the party that is supposed to produce the emails argued that it would be far too expensive to recover the emails. In other words, why ask someone to pay $100,000 to find emails relevant to a case, when the case involves only $10,000? This was the argument made by many companies when they were asked for emails.
Judge Scheindlin noted that many courts had automatically assumed that electronic evidence meant much higher costs, and would deny email requests. This often ended the case, as a plaintiff couldn't get access to necessary evidence. Judge Scheindlin recognized that electronic data could be searched much more cheaply than paper documents could be read and reviewed - an office computer using a search engine could find something in seconds.
The judge created a three-step analysis:
First, how is the data stored? Is it accessible, or inaccessible?
The judge said 'accessible data' means data that is readily usable, and doesn't have to be restored. Examples include data stored on hard drives, CDs, DVDs, etc.
'Inaccessible data' means data that is on backup tapes, or has been erased or damaged. This data is inaccessible because something has to be done to it before it can be accessed. That "something" will cost time and money.
When faced with inaccessible data, the judge said that courts should consider shifting the restoration and production costs to the party asking for the data.
Second, in order to analyze whether to shift costs, the court needs to know what is in the inaccessible data. The judge suggested restoring a small sample of the requested inaccessible data to find out what is there.
Third, the judge developed a seven-step cost-shifting analysis:
1. How specifically is the request tailored to find relevant information? In other words, has the request been written so that it will discover documents relevant to the case?
2. Is this information already available from other sources?
3. What's the total cost of production, compared to the amount of the case?
4. What's the total cost of production, compared to each party's resources? (Does one party have deep pockets?)
5. Can each party control costs, and does each one want to?
6. How important are the issues at stake in the case?
7. What are the benefits to the parties of restoring the data?
The judge stressed that these seven factors are not a check-list and they don't have equal weight with each other. The first factors on the list are the most important, and they are less important as the list goes down.
The judge summarized the central questions of the seven-factor cost-shifting test as: 'does the request impose an "undue burden or expense" on the responding party?' and "how important is the sought-after evidence in comparison to the cost of production?"
In other words, "is it an undue expense?" and "is the data important enough to be worth the cost?"
Judge Scheindlin decided that UBS must produce accessible data, as UBS could do this quickly and cheaply.
The judge also decided that UBS must restore responsive emails from five back-up tapes so that the court could look at the data and begin its cost-shifting analysis.
And so ended the first Zubulake decision (known as Zubulake I). The story continues in Zubulake III! (The Zubulake II decision didn't address anything related to electronic discovery, so I won't talk about it.)
Monday, April 19, 2010
E-Discovery Basics, Part Two - Introduction to Zubulake
This post is the next installment in my survey of e-discovery basic principles.
One of the most important, and consequential, series of court decisions in the area of electronic discovery is the Zubulake v. UBS Warburg case, normally referred to simply as "Zubulake".
Zubulake is important because it deals with the question of who is responsible for paying the costs of e-discovery; the plaintiff or the defendant?
E-discovery can be very expensive. It is especially expensive when one party asks the other to hand over data, and that data is not easily accessible. For example, the data may exist only on back-up tapes, which forces the producing party to find the correct back-up tape, restore it so that the data is accessible, find the data, check to make sure the data hasn't become corrupted, make a copy of the data somewhere else, and only then begin to look at the data to see what is actually there, and what it says. All of this takes time and money, and diverts the producing party's resources away from other tasks (such as running a business). The question is: who should pay for this?
Zubulake is a series of five decisions released from 2003 through 2004 by Judge Shira Scheindlin of the U.S. District Court (a federal court) for the Southern District of New York.
Laura Zubulake sued her employer, claiming gender discrimination. She asked UBS for any emails or other documents discussing her case. UBS turned over a relatively small number of emails, while Zubulake herself produced almost five times as much email information. UBS did not search its back-up tapes or its other archives for emails related to the Zubulake matter, saying it would be a burden, and it would be expensive. UBS asked the court to shift the costs to Zubulake (and make her pay for retrieving the emails from the UBS archive).
The court considered the question of whether UBS should be required to produce relevant emails. If so, who should pay for this? Should the cost be shifted from one party to the other?
The exciting continuation of this case will be the next intallment of this blog. Stay tuned!
(For the curious, the Zubulake case is cited as Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. 2003).)
One of the most important, and consequential, series of court decisions in the area of electronic discovery is the Zubulake v. UBS Warburg case, normally referred to simply as "Zubulake".
Zubulake is important because it deals with the question of who is responsible for paying the costs of e-discovery; the plaintiff or the defendant?
E-discovery can be very expensive. It is especially expensive when one party asks the other to hand over data, and that data is not easily accessible. For example, the data may exist only on back-up tapes, which forces the producing party to find the correct back-up tape, restore it so that the data is accessible, find the data, check to make sure the data hasn't become corrupted, make a copy of the data somewhere else, and only then begin to look at the data to see what is actually there, and what it says. All of this takes time and money, and diverts the producing party's resources away from other tasks (such as running a business). The question is: who should pay for this?
Zubulake is a series of five decisions released from 2003 through 2004 by Judge Shira Scheindlin of the U.S. District Court (a federal court) for the Southern District of New York.
Laura Zubulake sued her employer, claiming gender discrimination. She asked UBS for any emails or other documents discussing her case. UBS turned over a relatively small number of emails, while Zubulake herself produced almost five times as much email information. UBS did not search its back-up tapes or its other archives for emails related to the Zubulake matter, saying it would be a burden, and it would be expensive. UBS asked the court to shift the costs to Zubulake (and make her pay for retrieving the emails from the UBS archive).
The court considered the question of whether UBS should be required to produce relevant emails. If so, who should pay for this? Should the cost be shifted from one party to the other?
The exciting continuation of this case will be the next intallment of this blog. Stay tuned!
(For the curious, the Zubulake case is cited as Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. 2003).)
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