Historical ESI Highlights – Part II – Zubulake

In Part I of this series, I quoted Judge Facciola’s observation that The Hon. Shira A. Scheindlin’s 1999 law review article sparked a revolution.  However, Judge Scheindlin’s subsequent Zubulake decisions were also pivotal.  Everyone practicing law at that time heard of them.

Zubulake was a series of cases.  Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309 (S.D.N.Y. 2003), became known as “Zubulake I.”  It was followed by Zubulake II, 230 F.R.D. 290 (2003), Zubulake III, 216 F.R.D. 280 (2003), Zubulake IV, 220 F.R.D. 212 (2003), Zubulake V, 229 F.R.D. 422 (2004), and then a sixth decision, 382 F.Supp. 536 (2005). One article notes:

This was the first ruling in the history of e-discovery to set guidelines as to what e-discovery duties parties have in litigation, define e-discovery to encompass the full range of ESI in its current usage, and to identify and impose sanctions for a party, and its counsel, failing to sufficiently fulfill their ESI-related duties.

Mylee McKinney, “Dangers and Demons of Social Media Networks and Their Effects on Litigation in the Modern Age,” 6 Savannah L. Rev. 85, 90 (2019)(quotation and citation omitted).

A complete summary of Zubulake would take substantial time.  Suffice it to say that it defined the litigation hold, applied principles of proportionality and cost-sharing, and imposed a duty on counsel to implement and monitor the litigation hold by identifying and interviewing key players.

West KeyCite lists 2,599 citations to Zubulake I and 2,296 citations to Zubulake V. The Zubulake decisions have been cited as recently as April 2022. Elavon, Inc. v. Ne. Advance Techs., Inc., 2022 WL 1175039, at *3 (S.D.N.Y. Apr. 20, 2022).

Zubulake shaped the contours of modern e-discovery.

In Zubulake, the court imposed sanctions against the defendant, after  Ms. Zubulake demonstrated that the defendant failed to produce relevant emails.  The plaintiff, Ms. Laura Zubulake, wrote a book titled “Zubulake’s e-Discovery: The Untold Story of My Question for Justice” (2012), noting:

Where there was e-smoke, I suspected there would be e-fire. [emphasis added].

And, there was.  She wrote that: “It took only one resurrected smoking gun to alter the trajectory of my case.”

Remarkable as it may now seem, Ms. Zubulake reports that her email account was not requested by the defense in discovery. Id. at 63. As noted in Part I, Prof. Marcus  explained that, during the rules-drafting process: “A number of people, for example, said that the right approach would be to declare somehow that email is not discoverable.”  Richard L. Marcus, “E-Discovery Beyond the Federal Rules,” 37 U. Balt. L. Rev. 321 (2008). Prof. Marcus reports that, by 2000, the tide had turned and there were calls to “make it clear that email and other computer information are subject to discovery.” Id. at 329.

History is important.