By Tim Rollins
There’s an apocryphal quote that calls attention to the fact that history is not objective. Frequently attributed to Winston Churchill, “History is written by the victors” foregrounds the notion that history is a story, constructed collectively, that looks back into the past and defines it in an attempt to make sense of the present. Today, with e-discovery ascendant as both an industry and as an endeavor, with technology driving the courts to carve out new standards for the practice of discovery, legal historians must look at historic cases that presage the critical role e-discovery plays in the legal world today.
In many ways, the history of e-discovery is still in its first draft. As a formal endeavor, it is less than a quarter century old. Preliminary attempts at recovering and analyzing electronically stored information (ESI) were taking place in the mid-90s, but at that time, early e-discovery efforts were likely seen as another form of discovery, not as a thing unto itself. Perhaps the 2006 FRCP amendments might mark as good a “birthday” as any for when e-discovery stepped out of the shadows of discovery and became its own thing.
Zubulake v. UBS Warburg
But before the 2006 FRCP ampendments, Zubulake v. UBS Warburg, and specifically US District Judge Shira Scheindlin's five pre-trial rulings, set the agenda for a conversation that is still unfolding in the world of e-discovery to this day. In the case, plaintiff Laura Zubulake filed a gender discrimination case against her employer, UBS Warburg, over a promotion that she believed she had earned but did not receive. In 2001, when she filed the case, none of the parties involved appreciated the case as history-making, as opposed to a standard workplace discrimination case. (Another excellent resource is the ABA Journal's article, Looking back on Zubulake, 10 years later, by Victor Li).
History has proven them wrong. On May 13, 2003, Judge Scheindlin issued the first two of five pretrial rulings that one can safely say laid the groundwork for the discipline of e-discovery. To celebrate the occasion, this article (the first in a series of four articles on the various pre-trial Zubulake v. UBS Warburg rulings) will look at the issues addressed in Zubulake I, issued fifteen years ago. (We’ll not address Zubulake II, as it did not focus directly on e-discovery issues.)
Zubulake I laid the groundwork on a number of issues that have continued to resonate in the practice of e-discovery today:
- Cost shifting
- Accessibility and classes of data
- “Unduly burdensome” discovery requests
- Process for resolving discovery disputes
When UBS Warburg produced only 350 pages of documents compared to 450 pages of email provided by Zubulake alone, Zubulake requested the defendant produce documents from backup tapes. UBS argued that the plaintiff should bear the expense ($300,000) citing an earlier court decision. The court clarified that cost shifting was allowed, but not assumed to be appropriate just because discovery included ESI.
Accessibility and classes of data
Key to the opposing parties’ arguments about cost-shifting were the multiple classes of data and their relative accessibility. Data sources included:
- Online data including hard disks
- Optical disk stored data
- Magnetic tapes stored offline
- Backup tapes
- Erased or damaged data
In short, Judge Scheindlin ruled that accessible data was not subject to cost shifting, but that cost shifting was appropriate for data that was reasonably inaccessible.
The case UBS Warburg cited to explain the burden of Zubulake’s discovery requests was Rowe Entertainment, Inc. v. William Morris Agency, Inc. That case used a variety of factors to weigh undue burden, including:
- Specificity of discovery requests
- Likelihood of discovering critical information
- Availability of such information from other sources
- Purposes for which the responding party maintains the requested data
- Relative benefits to the parties of obtaining the information
- Total cost associated with production
- Relative ability of each party to control costs and incentive to do so
- Resources available to each party
Process for resolving discovery disputes
Judge Scheindlin created a new seven factor test to evaluate the burden of a discovery request. She considered:
- The extent to which the request is specifically tailored to discover relevant information
- The availability of such information from other sources
- The total cost of production, compared to the amount in controversy
- The total cost of production, compared to the resources available to each party
- The relative ability of each party to control costs and its incentive to do so
- The importance of the issues at stake in the litigation
- The relative benefits to the parties of obtaining the information
In essence, she articulated more clearly concerns about both relevance and proportionality that have become cornerstones of contemporary e-discovery practice—ones that in fact have been called into heightened perspective not just in the 2006 FRCP amendments, but also in the 2015 amendments that came to bear over 12 ½ years after this ruling was written. Few issues or concepts are more critical to successful information governance and e-discovery processes than proportionality, so to celebrate this fifteenth anniversary of Zubulake I you might want to refresh your acquaintance with key concepts in proportionality by reviewing our case law white paper on proportionality, No More Diminishing Returns.
This article (and author) owes a debt of gratitude to Bruce Douglas and Daniel Ballintine for their excellent presentation, Electronic Discovery: Lessons from Zubulake from 2006.