The fields of electronic discovery and digital forensics are rapidly evolving. In the early part of this millennium, discovery rules were handled primarily on paper, but with the advent of the computer age documents were created electronically, and important rules on electronic preservation information had to be invented. In this series we will consider some of the major cases, opinions, and outcomes that notified of this evolution.
Judge Shira Scheindlin made a precedent (and often cited) opinion in the important case of Zubulake v. UBS Warburg - 2003 - 2005.
Back story:
At that time, Laura Zubulake worked in Connecticut and New York, UBS Warburg, headquartered in Switzerland, Europe's largest bank. She was a very successful stock manager, investing over $ 650,000 a year and sold Asian stocks to institutional investors for 10 years. In 2000 she was handed over to promised promo to take over as the senior sales manager of the Asian desk when her boss left that position.
Instead, Matthew Chapin was given a position. So, according to stainiff, he neglected her in front of his colleague and denied her important account ... before the trial, the former UBS Sales Assistant said she was Chapin Call (UBS is a sex bias You need to pay $ 293,000 former employee in case (Update 5)) - Bloomberg, April 6, 2005).
In August 2001, Zubulake submitted a complaint to the employment committee and in October Chapin laid off her in the process of fabricating email, records and complaints. Zubulake claimed gender discrimination, promotion failure, repatriation under federal, state and city laws.
UBS claimed that due to sexual discrimination Chapin was scratched by everyone, including male employees, not abrasive grains. Remarkable discussion! The bank insisted that she was dismissed for disobedience.
UBS came up with a total of 100 e-mails when it came time to create documents at discovery, but Zubulake himself was able to create 450 related e-mails between company staff. UBS had the duty of litigation, but it seems that hundreds of e-mails have disappeared despite the obligation to hold them still. In addition, UBS has created additional e-mails that appear to be incorrectly generated.
When detection of archival data and backup tapes was requested, UBS argued that overtaking such data would be an excessive expense and burden of UBS. Rowe v. Cited the case of William Morris and asked the court to shift production costs to Zubulake based on the "Rowe test" which is a set of weighting factors used to determine the cost shift resulting from the Rowe incident.
Judge Shira Scheindlin in the Southern District of New York showed five advanced views on production / discovery, the extent to which the discovery and production of ESI is possible, and how to determine the obligation to preserve evidence. She discovered that just because data is electronically stored (ESI), she does not need to spend excessive costs on its production. In fact, due to the ability to perform machine / computer searches, the cost is actually less than the equivalent human search of paper documents.
As accessibility declines, the cost burden increases. ESI It is saved. In the electronic repository, online data (hard disk, etc.), near line data ( CD It includes various types of data such as offline storage (such as magnetic tape), backup tapes, fragmented, erased, corrupted data. Backup tapes and fragmented / corrupted data are considered to be almost inaccessible, so most of them were subject to cost shifts.
The court ordered the sampling of the data by restoring five backup tapes to determine if the remaining 70 or more tapes are likely to generate relevant data. They generated a 600 response message. Judge Schendlin designed a new 7 element test to determine if the cost shift is going well.
The first two elements are considered to be the most important.
1: Do you have a requestor to find related information? I was annoyed with the fishing adventure.
2: Is there information available from other sources? (The parties need to get information from the most accessible source, for example, company reports and public information, not digging with old backup tapes).
The following three factors are considered to be secondarily important.
3: Total production cost v. The amount of conflict (the cost of discovery should be considered less than the potential victory of the incident).
Four: Total cost v. Resources available to each party (no one should bankrupt).
Five: Relative ability, incentive to control cost (The parties paying for production have obvious obvious incentives to control costs).
The last two factors are considered less important than the first five factors.
6: Importance of important issues in litigation (Does this incident have a serious impact on society? Zubraki incident was related to gender discrimination, but it was not a groundbreaking case in that field).
7: What is the relative benefit for the party obtaining the requested information?
(In principle, this test is considered to be of little importance as it is assumed that the plaintiff is trying to gain profits).
Sometimes the court found that UBS lost evidence (monthly backup tape was missing), evidence was inadvertently destroyed (weekly tapes backfill tape monthly), deliberately adding additional evidence As a result, Judge Scheindlin instructed the jury adversary inference. "Because UBS's search was deliberate, the lost information seems to be relevant, in other words, if the data is lost, the jury may notice that UBS is intentional You can think that you discarded it like a disaster for UBS.
Zubulake demanded $ 29 million, including compensation for damages of 9 million dollars and punitive damages of 20 million dollars. UBS had to pay deposits and repetitious deposits, movables costs, almost all production costs.
The Zubulake incident led to several groundbreaking events in the progress of the law on Electronic Discovery and led to much of the 2006 revision of the Federal Civil Procedure Code ( FRCP ). Included in miles:
The parties are obligated to save the ESI during the lawsuit. - Not only when a lawsuit has taken place, but also when cases are anticipated.
Lawyers have an obligation to monitor clients. ESI compliant. This includes external lawyers! Sanctions are not just about affecting parties and internal lawyers.
Data sampling is allowed and recommended. In the discovery process, we first get data from several tapes and hard drives. For example, it may be duplicated in the rest whether something is present in the rest).
Disclosure parties can shift the cost of data that is difficult to access. If the client is looking for information that is difficult to dig or produce, it is necessary to transfer the cost to the requester.
Sanctions may be imposed on the search of ESI.
Zubulake set up rules and tests that provided information to later courts. Decision making and 2006 revision of the Federal Civil Procedure Rules and 2009 California Regulations. They will continue to support forming legislation and providing information on electronically stored information. As a result, this case continues to change the form of computer forensics and electronic discovery industry.
Next article in this series: Federal Civil Procedure Code 2006 ESI revision.
