August 1, 2011

eDiscovery Retreat-Laura Zubulake-Lessons from THE plaintiff

by Cary J. Calderone

One highlight at the Carmel eDiscovery Retreat, was hearing from THE plaintiff Laura Zubulake.  Zubulake v. UBS Warburg LLC., 217 F.R.D. 309(S.D.N.Y. 2003) is a seminal case and is the foundation for many other discovery decisions and even modifications to discovery procedure rules.  Rules were modified so they could be better applied to electronic media and computers.  Now I have to admit, I was like many attorneys who assumed that some very smart lawyers had recognized the value in searching defendant UBS's emails for evidence of wrongdoing.  But, that is not how it happened.  Laura was actually the one who insisted her attorneys demand production of emails because she KNEW the defendant had not done a reasonable job in producing the relevant materials in their possession or control.  The end result?  A $29.2 million dollar jury verdict in her favor.  As Laura noted, Electronically Stored Information (ESI) and email in particular, is "like DNA evidence for trials!"

Her talk began with this simple observation-"Sometimes lawyers should listen to their client."  And, to reword this lesson for defending counsel-when the plaintiff is a former employee, who routinely received and sent 200 emails a day on the job, and the time frame for the case spans years, producing only 100 "relevant" emails, is not going to suffice. The Zubulake case was written by Magistrate Judge Shira Scheindlin and is known for its discovery rulings and underlying guidelines to determine when ESI data might be considered inaccessible and when it might still be necessary to preserve and/or produce it.  The case is a must read for anyone wanting to learn about a whole host of other "basic tenets" for determining "reasonable behavior" for handling ESI in advance of a potential legal matter.  Legal scholars and courtrooms, have been discussing and debating the case since it was first published.

What was most surprising to me was to hear Laura describe how difficult it was for her to convince her own lawyers that they needed to press for more email evidence. The demands for production started in 2002 and it was not until 2004, that the bulk of the emails were finally produced. Her persistence did pay off however, as she ultimately won a huge verdict. I can't help but wonder how many attorneys still believe that printing out a few relevant emails is a solid eDiscovery strategy?

Laura described 2001 as the technology dark ages. (I had to laugh as I had just recently learned of a law firm that finally upgraded from Groupwise to MS Exchange for email. Whoa. Cutting edge technology!)  It seems I am not alone in noticing that lawyers seldom move quickly to adopt or understand new technology. Part of the problem is they do not ever want to be on the bleeding edge of new technology and discover that a new technology is not reliable. While this is a valid reason for being cautious, there are far too many lawyers who believe, "if it aint broke, don't fix it."  Meaning, why pay money for computer technology that can turn 5 hours of billable work into only 1 hour?  Well, eventually the client figures it out. That's why.  Or, you end up being the only one in court who does not understand the difference between an email, and an email attachment?(another of my real-world examples)

She made another great point regarding the lack of understanding of technology.  She knew of some colleagues who had  tried to protect emails from disclosure under the attorney-client communication privilege, even though there were no attorneys involved in the email chain!  I once again was nodding my head in agreement.  I have had more than one worker confide to me the they thought their boss marked everything as "Confidential" so they would not have to produce it in a legal proceeding.  That is LOL funny.  I bet the Judge will be smiling too as they calculate the appropriate sanction.  As Judge Peck quipped during his keynote, "we Judges love being lied to."  :)

Laura spoke for an hour, and made one great observation after another.  My favorite was this: “eDiscovery is about going to trial and too many consultants and lawyers have never gone to trial."  She noted that, since the Zubulake case, an entire new cottage industry has sprung up around litigation preparedness, and early case assessment.  "But, there is still a lot of bad advice!"  I wanted to give her a standing ovation.  Readers of this blog know about some of my past frustrations when trying to guide clients away from sales-puffing claims and "best-practices" extolled by inexperienced consultants, who just recently started dabbling in the legal consulting arena.  Wonder what she would have thought about the sincere confession to me by one technology consultant that "he really started to understand just how particular the judges can be, when he went through his divorce!"   Yep, that ought to be plenty of legal background to help a company design a reliable eDiscovery plan...ugh.   Laura Zubulake too, was frustrated with consultants who did not understand how discovery battles are fought and won, and how ultimately, they can determine the outcome of the case.  

In conclusion, I was reminded of my old post from 2008, "Federal Court for Discovery? Be a Boy Scout."  The lessons she described, about discovery and reasonable behavior, do not change even though the technology does.  So, if you want to be safe, be prepared, and avoid sanctions today,  you had better act reasonably in light of the current technology and techniques available.  Keep up!

Finally, Laura has written a soon-to-be-released book about her experiences as THE plaintiff, and I will definitely be reading it.  If it is half as interesting and illuminating as her talk, it will be well worthwhile.  Perhaps you should read it too.

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