Legal strategy and the underlying and outlying circumstances and emotional drivers that go to strategic positioning are the elements we are not privy to in reviewing case law. As a 20-plus year professional working in the field of litigation, those are exactly the elements I am curious about when I study opinions. In her book, “Zubulake’s e-Discovery, The Untold Story of my Quest for Justice,” Laura Zubulake provides those answers. Zubulake’s account of her precedent setting case is both emotional and educational. She writes of the events and legal challenges through all five of the often-cited Zubulake opinions from her perspective as the plaintiff.
The Zubulake story starts in 2001, at a time when requesting ESI – specifically email – was not a mainstream part of discovery and many legal professionals did not have an appreciation for the complexities of electronic systems with regards to identification, preservation and production. Zubulake made this observation early on, as demonstrated on page 55 with her statement “Although business had embraced technological advances, the legal system failed to progress into the twenty-first century.”
The eDiscovery industry has made leaps and bounds in terms of technological advances since 2001. While the technology has advanced, additional case law has been established, state and federal rules created and amended, many of the core issues faced by the Zubulake parties remain a challenge for today’s litigants. Zubulake is generous in sharing eDiscovery “lessons learned” with readers, including the approach to the tape sampling process and the weaknesses of using key terms for searching.
I believe Zubulake’s e-Discovery is a must-read for law students. The author does a good job explaining the important historical events and challenges leading to the Zubulake I through Zubulake V opinions. Further and equally important, it tells the story of the emotional tests faced by an individual plaintiff facing a large opponent with endless funds; a plaintiff, in this case, whose career and reputation were on the line.