Laura Zubulake was the keynote speaker on the second day of the Access Data Users’ Conference in Las Vegas. Just in case someone reading this ediscovery blog does not recognize the name “Zubulake”, her case is considered the foundation for the current rules of preservation for ediscovery. For the keynote address, Ms. Zubulake gave a high-level overview of her case, and the key motions. She said that most people that have written about her case actually know very little of what happened, and that the details would be available in her book, which is scheduled for release in June 2012.
Ms. Zubulake said that her case was never about ediscovery… it was the result of discrimination and retaliation, and her persistence came from a desire for vindication, accountability and justice. In fact, her case happened during the “stone ages” of ediscovery. She did not ask for metadata, and only got email attachments because she selected them. Most standard ediscovery tools today will flag or label associated emails and attachments, and some will even correlate email threads. Ms. Zubulake used a spreadsheet to track information about emails (sender, recipients, dates, etc.)… another function that is standard in current ediscovery applications.
Ms. Zubulake said she manually re-typed every email that was used for trial; a task that ended up being a big help because she was able to recall specific verb tense and other details about the emails when she was testifying in court. Clearly passionate about her case, Ms. Zubulake said that although she is not an attorney, she was heavily involved in her case, and performed the following functions:
- Served as a senior member of her legal team
- Read and approved all motions
- Wrote deposition outlines
- Made key decisions
- Helped select the jury
- Made decision to “search”, rather than settle
Ms. Zubulake went through a timeline of her case, and highlighted critical motions and events.
Zubulake I – May 13, 2003 – Motion to Compel the Production of Email
Zubulake I was the motion to compel production of email, which Ms. Zubulake says gave her the ability to “search”. Emails were the most important component of her case because they shed light on conversations, and gave a timeline of events prior to her dismissal from UBS. Ms. Zubulake noticed clusters and patterns in the emails, and even found one where someone wrote that they (UBS) needed to “exit her immediately”. The emails were displayed on a projection screen at trial, and the visible nature of the written word had an impact on the jury.
Zubulake III – July 24, 2003 – Motion for Cost Shifting
Zubulake III was the motion for cost shifting. Ms. Zubulake selected five backup tapes, custodians and keywords for production. Of the five backup tapes requested, only four were available, and only two of those contained useful information. For keywords, she simply chose “Laura”, “Zubulake” and “LZ”. In hindsight, Ms. Zubulake says she would have been more creative with her keyword selection, but her choices ended up providing the evidence that she needed. Judge Scheindlin split the costs 75% ($120,000) to UBS and 25% ($40,000) to Ms. Zubulake.
Zubulake IV – October 22, 2003 – Sanctions
Zubulake IV was the motion to impose sanctions on UBS, and is the basis for our current rules for the duty to preserve. Ms. Zubulake said her greatest disappointment in her case is that she failed to show that some missing backup tapes contained relevant emails. However, she used math to show that evidence was lost, and the explanation for this would be “in the book”.
Zubulake V – July 20, 2004 – Adverse Inference
Zubulake V is where Ms. Zubulake filed for adverse inference, but this ended up playing “no role” in her victory. Instead, the binder of emails is all that was needed to win her case. As she mentioned earlier in the keynote, the emails provided a visual history of conversations.
Ms. Zubulake took time at the end of the keynote to give her opinion on predictive coding by saying, “be careful what you wish for with algorithms”. She noted that she worked with algorithms every day on the trading desk, and seemed to warn against relying too heavily on what is inside the black box.
Greg Harris – eDiscoveryJournal Contributor