In 2003 and 2004, Judge Shira A. Scheindlin, of the Southern District of New York, issued a series of opinions concerning parties' electronic discovery obligations in connection with a case styled Zubulake v. UBS Warburg LLC, et al., No. 02 Civ. 1243 (S.D.N.Y.).1 The Zubulake opinions have become widely accepted as guideposts in the ever-evolving world of electronically stored information and have been cited, across jurisdictions, collectively, nearly 5,000 times. The opinions addressed, among other things, the scope of a litigant's duty to preserve and produce electronic data, attorneys' duty to monitor their clients' compliance with their obligations, and spoliation.
Now, six years and thousands of cases later, Judge Scheindlin has once again confronted the issue of litigants' electronic discovery obligations, reaffirming the importance of e-discovery and, through sanctions, demonstrating the consequences of failing to comply with the mandates set forth in Zubulake. In The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, LLC, et al., No. 05 Civ. 9016 (S.D.N.Y. January 11, 2010) — an 87 page decision subtitled "Zubulake Revisited: Six Years Later" — Judge Scheindlin warned that "parties need to anticipate and undertake document preservation with the most serious and thorough care, if for no other reason than to avoid the detour of sanctions." Some of the plaintiffs in Zubulake Revisited failed to do so, and were sanctioned for their "careless and indifferent collection efforts." In several instances, Judge Scheindlin found that these omissions were even the result of gross negligence, and, at trial, she will give an adverse inference instruction to the jury.
Zubulake Revisited makes clear that parties must:
- Issue a written litigation hold;
- Institute policies to preserve, and prevent deletion of, electronic records, including back-up storage;
- Identify key players and ensure that their electronic and paper records are preserved and collected;
- Preserve and collect the electronic and paper records of former employees; and
- Ensure preservation and search efforts are supervised by management.
In sum, "[w]hile litigants are not required to execute document productions with absolute precision, at a minimum they must act diligently and search thoroughly at the time they reasonably anticipate litigation." As underscored by Zubulake Revisited, a failure to do so could have significant consequences on the outcome of a case — consequences that easily can be avoided by taking the appropriate steps to preserve, collect and produce electronic documents.