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Written by Administrator
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Wednesday, 28 December 2005 |
“The Impact of The Zubulake Decision On Law Firms in E-discovery”
Through the years 2003 and 2004, United States Federal Judge Shira Scheindlin issued five landmark e-discovery decisions in the Zubulake case. The Zubulake rulings have set new standards of conduct for corporations, and more importantly for their counsel.
Of particular significance is the Zubulake V decision, where Judge Scheindlin focused on the responsibility of lawyers. In this ruling, she noted that lawyers are obligated to assume a greater role in civil litigations where e-discovery is an issue and that the lawyers’ failure to do so would leave the lawyers themselves open to penalties and sanctions.
The Zubulake rulings stem from a case Ms. Laura Zubulake (the plaintiff) filed in 2001, against her former employer, UBS AG, a European bank, claiming she had suffered gender bias in the workplace.
During the trial’s discovery process (a process where both parties are required to provide relevant documents to the opposing party in the case), Zubulake requested Court to require the bank to produce evidence found in the electronic data which was maintained by the bank in its back-up tapes.
While Ms. Zubulake was able to produce 450 emails, the bank on the other hand only produced 350 emails. Based on these and other supporting evidence, the Court determined that UBS AG intentionally deleted the electronic data, in this case the e-mails, which were relevant to the litigation.
In the decision the Court set forth, it noted that part of the blame in the destruction of the electronic data rested on the shoulders of the banks’ counsel. The Court addressed the counsel’s shortcomings by outlining the reasonable moves a law firm or lawyer should undertake:
One – it is the lawyers’ duty to put on “litigation hold”, relevant electronic documents and to identify these discoverable information. Counsel should also be able to quickly locate, preserve, and produce these requested data in a timely manner.
In addition, it is the lawyer’s duty to educate the concerned employees, on what the “litigation hold” means and what this entails.
Secondly, the lawyers should ensure that the concerned party is periodically reminded about the “litigation hold” over the documents.
Thirdly, the lawyers should monitor the concerned party’s activities as they retain, preserve, and produce the electronic data.
Fourth, counsel must establish regular communications with the “key players”; defined as parties who’ve been named in the lawsuit or have been subpoenaed as witnesses. In the course of this contact, counsel should specifically instruct the “key players” on their responsibility in preserving the documents.
In addition, the counsel should familiarize himself or herself on how each key player preserves and handles their electronic information.
With these enumerated steps, the Zubulake V decision has made it clear how lawyers and law firms must change how they handle e-discovery issues.
The rulings point out that complexities associated with digital data management systems is no excuse for ignorance. Lawyers and law firms must now educate themselves on these basic technologies. Moreover, lawyers and law firms should also educate themselves on the issues that e-discovery raises.
In connection with this, counsel should also familiarize himself or herself with the client’s electronic data management policies and IT department.
The law firm or lawyer take a hands on approach by closely supervising and monitor how concerned employees or clients manage their electronic data systems. The common practice before for law firms was to assign a junior partner to handle the data.
Law firms should document the proceedings of its’ meetings with clients and the agreements reached during these discussions. These records would enable the law firm to prove their diligence in handling the e-documents.
The Zubulake rulings have proven, that the arrival of the digital has brought with it new and complicated issues regarding e-discovery.
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Zubulake-The Details 
