Pooja Shrivastava

E-Discovery
Let’s first discuss Discovery to understand e- discovery. Discovery is a pre-trial part of
suit in law. This is a phase in which each party can demand documents and other
evidences from the other party and even compel the production of evidences under
subpoena. Discovery rules are governs under Rule 26 to Rule 37 in federal law. In US
some documents are privileged documents, such as letters between solicitors and experts.

Discovery is known as disclosure in UK and used in civil litigation.

E-discovery also referred as ESI (Electronically Stored Information).It’s a type of

discovery which deals with the information in electronic format, this is a process in
which e-data is sought, located, secured and searched for using it as evidence in civil
cases. E-discovery can be carried out offline on a particular computer or it can be
conducted on a network. In e-discovery, data of all types can serve as evidence. This can
include text, images, calendar files, databases, spreadsheets, audio files, animation, Web
sites, e-mail, instant messaging chat, documents such as MS office or Open Office files,
accounting database, Cad/Cam files and computer programs. Even malware such as
viruses, Trojans and spy ware can be secured and investigated. The updated Federal
Rules of Civil Procedure (FRCP) make electronically stored information (ESI) as
important in litigation matters as paper-based documents. The rules now explicitly
designate ESI as discoverable in a federal legal proceeding. "With 40% of corporate
information spending its entire life in electronic form, ESI has become very important in
litigation," says Tom Russo, a member of the Corporate Counsel Technology Institute at
Widener University School of Law, Wilmington, DE, as well as a faculty member at the
National Judicial College in Reno, NV. E-discovery rules is subject to amendments to the
FRCP which are effective from December 1, 2006. Particularly, Rule 16 and 26 are of
interest to e-discovery.

Rule 16. Pretrial Conferences; Scheduling, Management.

Rule 26. General Provisions Governing Discovery; Duty of Disclosure

Important case in the History of E-Discovery:

Zubulake v. UBS Warburg, L.L.C., 217 F.R.D. 309, 322 (S.D.N.Y. 2003).

This first opinion addresses the legal standard for determining the cost allocation for
producing e-mails contained on backup tapes. Basic facts of this case: the plaintiff, Laura
Zubulake, 44, was the director of the bank’s Asian shares sales desk in New York with an
annual salary of $500,000. She sued the Swiss financial giant for gender discrimination
and illegal retaliation. In her words, noted in her personal comment to this blog below
(which caused me to revise this case description), she complained of: “denial and
removal from professional responsibilities, exclusion from business outings, being
belitted and generally treated different from my male colleagues.” During e-discovery she
found emails from her employer confirming these allegations. The supervisor, and many
of his colleagues, tried to cover up by deleting emails and denying everything. Judge
Scheindlin and the jury did not buy it, and ultimately Zubulake was awarded Ten Million
 Pooja Shrivastava

Dollars in pay, and Nineteen Million in Punitive Damages, for a total award of
$29,000,000.00.

Zubulake III, Zubulake v. UBS Warburg LLC, 216 F.R.D. 280 (S.D.N.Y. 2003) This
decision allocates the backup tape restoration costs between Zubulake and UBS with a
detailed explanation of the appropriate criteria and weighting.

Zubulake IV, Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003)
This decision ordered sanctions against UBS for violating its duty to preserve evidence
and in the process established a scope of duty to preserve back up tapes, but only in
special circumstances.

Zubulake V, Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004) Zubulake
V requires outside counsel to make certain that all potentially relevant information is
identified and placed “on hold”. In the words of Judge Scheindlin:

To do this, counsel must become fully familiar with her client’s document retention
policies, as well as the client’s data retention architecture. This will invariably involve
speaking with information technology personnel, who can explain system-wide backup
procedures and the actual (as opposed to theoretical) implementation of the firm’s
recycling policy. It will also involve communicating with the “key players” in the
litigation, in order to understand how they stored information.

Zubulake VI Zubulake v. UBS Warburg LLC., 382 F.Supp.2d 536 (S.D.N.Y. 2005),
Defendants moved to preclude the introduction of evidence regarding the court's previous
decisions in the case, including the imposition of sanctions on UBS. Granting the motion,
the court agreed with defendants that the earlier decisions were irrelevant to plaintiff's
discrimination claims and would unfairly prejudice UBS. The court noted that the jurors
would be told all they need to know through the evidence admitted at trial and through
the court's charge, and that there was no need to reference the court's earlier decisions.