PA321: Time, Billing & Records PA321: Time, Billing & Records ManagementManagement

Unit 3 Seminar - E-Discovery

How’s everyone doing so far?Questions, comments, concernsDoes anyone still need to receive the

software?Please be sure to read all of the materials in

the unit prior to doing that week’s assignment…it will help you!

E-discovery

What is it?

Why do we care?

Laura Zubulake v. UBS Warburg LLC, 229 FRD 422 (SDNY 2004)

Why is this case important?

Zubulake v. UBS

Held: Employers in the United States are required to retain various types of employment records for a period of time. Compliance with the existing laws requires 3 steps: 1) creation and implementation of a sound data retention program that addresses electronic data issues; (2) creation and implementation of an effective “litigation hold” procedure; and 3) training employees.

First case of its kind to deal with the issue of electronic discovery; now there are over 200 cases that have made it to the appellate (reported) level

First case to clarify an employers’ duty to retain electronic records and put a “litigation hold” on them once a lawsuit has been filed

Defendant UBS was sanctioned for intentionally destroying electronic records of a former employee who was suing the company

Laura Zubulake was an equities trader specializing in Asian securities who sued her former employer for gender discrimination, failure to promote, and retaliation under federal, state, and city law.

Fully aware of their duty to preserve relevant evidence, UBS's in-house attorneys gave oral instructions in August 2001 -- immediately after Zubulake filed her EEOC charge -- instructing employees not to destroy or delete material potentially relevant to Zubulake's claims, and in fact to segregate such material into separate files for the lawyers' eventual review.

This warning pertained to both electronic and hard-copy files, but did not specifically pertain to so-called "backup tapes," maintained by UBS's information technology personnel. In particular, UBS's in-house counsel, Robert L. Salzberg, "advised relevant UBS employees to preserve and turn over to counsel all files, records or other written memoranda or documents concerning the allegations raised in the [EEOC] charge or any aspect of [Zubulake's] employment."

Subsequently -- but still in August 2001 -- UBS's outside counsel met with a number of the key players in the litigation and reiterated Mr. Salzberg's instructions, reminding them to preserve relevant documents, "including e-mails." Salzberg reduced these instructions to writing in e-mails dated February 22, 2002 -- immediately after Zubulake filed her complaint -- and September 25, 2002.

Finally, in August 2002, after Zubulake propounded a document request that specifically called for e-mails stored on backup tapes, UBS's outside counsel instructed UBS information technology personnel to stop recycling backup tapes. Every UBS employee either personally spoke to UBS's outside counsel about the duty to preserve e-mails, or was a recipient of one of Salzberg's e-mails.

Zubulake claimed that relevant e-mails had been deleted from UBS's active servers and existed only on "inaccessible" archival media (i.e., backup tapes). Arguing that e-mail correspondence that she needed to prove her case existed only on those backup tapes, Zubulake moved for their production. UBS moved for a protective order shielding it from discovery altogether or, in the alternative, shifting the cost of backup tape restoration onto Zubulake.

UBS was ordered to bear the cost of restoring the backups. In the restoration effort, the parties discovered that certain backup tapes were missing. They also discovered a number of e-mails on the backup tapes that were missing from UBS's active files, confirming Zubulake's suspicion that relevant e-mails were being deleted or otherwise lost.

Despite the repeated warnings by counsel, UBS employees had clearly intentionally deleted some key e-mails. This was evident by references made in other e-mails and which came to light in depositions, as well as from deleted e-mails which appeared on the backups.

It also came to light that relevant backup tapes were also missing.

It was clear that e-mails and/or backup tapes had been destroyed even after the warnings from counsel

UBS was repeatedly sanctioned by the judge during the course of the litigation for these discovery violations

Lawyers have always had the continuing duty to produce during the litigation process. The tricky question is what that continuing duty entails. What must a lawyer do to make certain that relevant information -- especially electronic information -- is being retained? Is it sufficient if she periodically re-sends her initial "litigation hold" instructions? What if she communicates with the party's information technology personnel? Must she make occasional on-site inspections?

Above all, the requirement must be reasonable. A lawyer cannot be obliged to monitor her client like a parent watching a child. At some point, the client must bear responsibility for a failure to preserve. At the same time, counsel is more conscious of the contours of the preservation obligation; a party cannot reasonably be trusted to receive the "litigation hold" instruction once and to fully comply with it without the active supervision of counsel.

The result of Zubulake is:

First, counsel must issue a "litigation hold" at the outset of litigation or whenever litigation is reasonably anticipated. The litigation hold should be periodically re-issued so that new employees are aware of it, and so that it is fresh in the minds of all employees.

Second, counsel should communicate directly with the "key players" in the litigation, i.e., the people identified in a party's initial disclosure and any subsequent supplementation thereto. Because these "key players"  are the "employees likely to have relevant information," it is particularly important that the preservation duty be communicated clearly to them. As with the litigation hold, the key players should be periodically reminded that the preservation duty is still in place.

Finally, counsel should instruct all employees to produce electronic copies of their relevant active files.

Counsel must also make sure that all backup media which the party is required to retain is identified and stored in a safe place.

In cases involving a small number of relevant backup tapes, counsel might be advised to take physical possession of backup tapes.

In other cases, it might make sense for relevant backup tapes to be segregated and placed in storage.

Regardless of what particular arrangement counsel chooses to employ, the point is to separate relevant backup tapes from others.

One of the primary reasons that electronic data is lost is ineffective communication with information technology personnel.

By taking possession of, or otherwise  safeguarding, all potentially relevant backup tapes, counsel eliminates the possibility that such tapes will be inadvertently recycled.

Oh, yeah, Laura Zubulake won the case finally:

In April 2005, after three years of litigation, the trial culminated with the jury finding the company discriminated against Zubulake and awarding her more than $29 million in damages.

In re Seroquel, 2007 U.S. Dist. LEXIS 5877 (MD Fla)

Class action lawsuit against drugmaker AstraZeneca, which alleged that the drug Seroquel, an anti-psychotic medication, possibly caused diabetes.

AstraZeneca was sanctioned for failing to comply with e-discovery orders

Despite requests by plaintiffs’ expert to meet with an equivalent IT counterpart to discuss various technical problems with production of over ten million pages and an explicit order to allow plaintiffs to interview AZ’s IT employees, no one was provided and no discussion took place.

AZ’s unilateral decision to conduct key word searches on a number of its databases to locate relevant documents without coming to an agreement with the plaintiffs about the words to be used was a concern. 

The court found the key word search was “plainly inadequate,” attachments to emails were not provided, relevant emails were omitted, AZ’s de-duplication method “remains mysterious,” production was tardy, AZ’s efforts in preventing and solving its technical problems were “woefully deficient,” and there was no quality control. The documents were “unsearchable, and unusable.”

Courts now have e-discovery procedures, just like with regular discovery. The court will issue specific orders re: e-discovery depending on the issues in the case.

See your local rules of civil procedure for the rules in your state/jurisdiction

What do these cases mean to you as a paralegal?

What ethical issues are involved?

See you all next week