Zubulake v. USB Warburg (a.k.a. Zubulake V)
A series of cases in the 2nd Circuit (Southern District of NY) have significantly influenced the discovery of information held in electronic format. The case began as a typical gender discrimination case. What has ensued is 5 opinions regarding the discovery of electronic data, the obligations of both the parties to litigation, and the duty of counsel to communicate with clients regarding discovery obligations. In the latest opinion, dubbed Zubulake V, Judge Scheindlin imposed sanctions on USB Warburg for destroying relevant email messages during the litigation. The Court further ordered the defendant to pay the plaintiff's attorneys fees in her quest for the missing evidence, granted the plaintiff's request for additional discovery and will permit the jury to make a negative inference about certain emails which were deleted by the company.
The Zubulake cases are widely viewed as the first series of definitive cases on electronic discovery and provide guidance in the areas of a party's duty to preserve electronic evidence during the course of litigation, counsel's duty to monitor their client's compliance, the ability of a party to shift the costs of retrieval of information to the requesting party, and the imposition of sanctions against a party found to have destroyed relevant evidence.
Zubulake IV specifically provided guidance on explaining whether electronic data is accessible based upon the media upon which it is stored. These include online data, near-line data, offline storage/archives, backup tapes, and erased fragmented or damaged data. Previously the Rowe case governed the question as to whether the costs of reproduction can be shifted to the requesting party. Noting the Rowe test "incomplete," Judge Scheindlin identified a new Seven Factor test, detailed in the opinion. She further noted that the factors of this new test should not be weighted equally and that the cases are fact-specific.
Interestingly, Judge Scheindlin noted that she disagreed with some of the Sedona Principles identified by the Sedona Conference (which provides more information than you thought you ever wanted to know in this area). What this demonstrates is that this is, indeed, an area of the law that is in flux and developing quickly. When confronted with discovery in a lawsuit, the parties should be very careful and counsel very attentive to client actions with regard to such information. For more information on electronic discovery, the Electronic Discovery Law Blog tries to make sense out of something that is Greek to most of us.