Review of Zubulake's e-Discovery

by Cary J. Calderone, Esq.

For the second time now, Laura A. Zubulake has really exceeded my expectations.  I wrote a piece about her keynote at the 2011 Carmel Valley e-Discovery Retreat (link) where she surprised me by sharing some of the details of her famous sexual discrimination lawsuit against UBS.  Her lawsuit lead to five powerful written opinions about email evidence and electronic discovery.  In her well-written book, Zubulake's e-Discovery-The Untold Story Of My Quest For Justice, she covers this material and more about her ups and downs during litigation from her unique perspective as the plaintiff.  What I enjoyed the most is that this is not a litigation story as typically portrayed in the movies or on television.  This is not litigation as it is taught in law school, covering just the black letter law and exceptions to the legal rules.  This is, as the commercial used to say, "as real as it gets."



Even with my many years of legal experience, when I saw the headlines about her case in 2005, "Plaintiff Laura Zubulake Wins 29 Million Dollar Verdict," I drew my initial conclusions.  There must have been egregious behavior, great evidence, and a successful trial and outcome.  Justice was served.  But the book tells two stories.  The first story is the one I was expecting after listening to her keynote address last year.   This is the story of how she had to push her attorneys to push the Court to allow them to search for and find the email evidence she knew existed.  This is the story that lead to the five published opinions about the reasonable standard of behavior for dealing with electronically stored information.  And, it is an interesting and important story.

The pleasant surprise was that there was also a second story.  In this story she writes about confronting her fears and challenges, both financial and emotional, in surviving the litigation process.  It was not easy.  This story reminded me, once again, of the old gypsy curse, "May you be involved in a lawsuit in which you know you are right."  This story covers her thought process and her strategy and some of the lessons she learned.  It covers how, and why she did not settle, and the risks she took along the way.  This is the sort of thing it takes lawyers years and years of litigation experience to learn and appreciate, and something that I feel is never explored adequately in television or the movies.  To me, this was a compelling story.

I'd like to see this book become mandatory reading for every law student.  It certainly is recommended reading for any judge, lawyer, executive, or legal aficionado, who wants to expand their understanding of email and electronic evidence.  Think you already understand email evidence?  Then, it will also help you prepare for the new legal issues that will surface as Social Media, Twitter, and the "technology-to-be-named later," become part of the litigation landscape.  Lastly, if you or your company has been a plaintiff or defendant in a lawsuit, or may be some day, it provides a wonderful description of the challenges, risks, and rewards, that litigants face every day.