At the end of April, the matriarch of eDiscovery, U.S. District Judge Shira A. Scheindlin, will step down from the bench. Since her appointment in 1994, Judge Scheindlin has presided over numerous high-profile trials, including those involving mobster John Gotti, New York’s “stop and frisk” law, and Russian arms trafficker Viktor Bout. But the most indelible mark left by her jurisprudence involves eDiscovery, beginning with her series of opinions in Zubulake v. UBS Warburg.
The Zubulake opinions established the leading precedent on a number of issues:
- the duty to preserve electronic evidence when litigation is anticipated;
- a lawyer’s duty to monitor a client’s compliance with the duty to preserve during a litigation hold;
- the need to engage in data sampling to determine the potential costs and effectiveness of recovering electronic evidence;
- the apportionment of the costs of recovering inaccessible media; and
- the appropriateness of sanctions for the spoliation of data.
With many tenets from these opinions memorialized in the 2006 amendments to the Federal Rules of Civil Procedure—the first federal rules to address eDiscovery—her influence was well-established, but it did not end there. Her landmark opinion in Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC penalized a party for negligence with respect to the duty to preserve electronically stored information (ESI). In that case, Judge Scheindlin issued an adverse inference against a party that failed to issue a litigation hold and set the standard for best practices in managing the preservation of ESI.
After taking senior status in 2011, Judge Scheindlin continued establishing the framework of eDiscovery law. One 2012 ruling, National Day Laborer Organizing Network v. U.S. Immigration & Customs Enforcement Agency, identified the weaknesses associated with basic keyword searches and suggested that “parties can (and frequently should) rely on latent semantic indexing, statistical probability models, and machine learning tools to find responsive documents.” This opinion was among the first to encourage lawyers to use the much-deliberated technology-assisted review (TAR) methods we now employ, including those in which data scientists build customized analytical models to find responsive documents in discovery requests, reducing manual review times and making the discovery process much more efficient.
After leaving the bench, Scheindlin plans to return to private practice. Though no longer wielding a gavel, as a member of the Advisory Board of the Sedona Conference and frequent lecturer and writer, she will no doubt continue to wield influence in the eDiscovery realm for many years to come.