The opinions of Judge Shira A. Scheindlin in Zubulake v. UBS Warburg LLC (Zubulake I, II, III, IV, and V) have become iconic e-discovery rulings, so we have to include them at the very beginning of this topic. The series of five decisions, spanning 2003 to 2005, made this employment discrimination lawsuit arguably the most referenced and definitive case on e-discovery. The test established by the court in Zubulake I is the leading standard for determining cost-shifting.
Top lessons from the Zubulake decisions are
‘ You don’t need to preserve ESI on backup tapes that are not reasonably accessible and beyond the normal retention times established by your company policy. Two possible exceptions are
• If you can identify backup tapes where specific employee ESI is stored, then you must preserve those tapes, whether the tapes are reasonably accessible or not.
• If backup tapes are actively being used for information retrieval, then the tapes would likely be subject to a litigation hold.
Your lawyer has a duty to affirmatively monitor your compliance with ESI preservation and production. Simply notifying you and your employees about a litigation hold is not sufficient. Lawyers need to review your documentation of preservation efforts and send reminders to employees of their obligations during the hold.
‘ If you ask that your opponent pay for production costs (cost-shifting), your request should be reasonable. Analysis of the work and costs involved should be grounded in fact, for example based on the results of ESI data sampling rather than guesswork. You should be able to back up your request with specifics of what you need, with a specific dollar amount.
At the end of the day, the duty rests with the party. In other words, you’re the one held responsible for anything that goes wrong.
You should be familiar with Zubulake decisions and be prepared to craft arguments and responses accordingly. If you don’t, you risk the wrath of the judge.