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eDiscovery Update: An interview with Laura Zubulake – A decade of e-discovery

Peter Coons

Peter Coons

Bloggers and journalists are always looking to interview the biggest celebrity, the most powerful politician, or the greatest athlete. In the field of e-discovery, there is no question that the top person anyone would want to interview is a woman named Laura Zubulake. I recently had the good fortune to talk with this extraordinary woman.

If you do not know what I am referring to, I will explain. Over a decade ago, Laura Zubulake was a plaintiff in a sex discrimination suit against her former employer, UBS Warburg. She was a successful Wall Street trader who was fired by UBS for alleged performance-related issues. She knew that was not the reason and she courageously stood her ground.

During the discovery phase, she and her lawyer learned that backup tapes were unaccounted for and critical emails were lost forever. Along the way, U.S. District Judge Shira Scheindlein wrote five opinions, which to this day are core e-discovery decisions on issues such as preservation of documents and cost shifting.

The case, which was tried in the Southern District of New York, resulted in a large punitive damage award against the defendant as a result of these discovery missteps. These decisions have been cited in hundreds of other cases and arguably helped propel electronic discovery to its current state.

Recently, Ms. Zubulake authored a book entitled, “Zubulake’s E-Discovery: The Untold Story of My Quest for Justice,” that details her ordeal and the resulting opinions. From the beginning, the reader realizes the important role Ms. Zubulake herself played in managing her case. The decisions that she and her lawyer had to make had a profound influence on the course and outcome of the trial. Her involvement in the case included not only assisting with motions but selecting backup tapes to restore and keywords to use to search those tapes.

Her involvement and tenacity was remarkable and a key factor in the outcome of the trial. Below are the responses to some questions I posed to Ms. Zubulake about the case and specifically issues surrounding her involvement and electronic discovery.

Q: Your involvement throughout the ordeal was impressive. At one point in the book you mentioned that the best piece of advice you received was to “take control and assume full ownership of your case.” You attended the depositions, oral arguments, assisted with timelines and motions. How vital was your participation in this case with regards to its outcome?

A: My participation was critical. As I state in my book, only I lived the allegations and knew the players and events. I wanted to search for the electronic evidence and made the decision to go to trial. If I had not insisted on a search, we would have likely settled early on. The Zubulake opinions never would have been and there would not have been a trial or verdict so the outcome of my case would have been very different.

Q: At many points in the book you discuss how your education, travels, and work on the Street prepared you for this event. Can you explain further how your training on Wall Street prepared you for litigation?

A: Wall Street as a profession is misunderstood (and too often demonized). Typically, Wall Street professionals are associated with having analytical, quantitative and organizational skills. In my area of expertise, we were tasked with predicting the future value of assets: buy vs. sell recommendations; whether to and how to hedge a position; asset allocation —bonds vs. equities; country allocations — investing in Hong Kong or S. Korea. We did not rely on the past (or precedents) to make prognostications — we analyzed information to predict the unknown.

An underestimated skill was our ability to locate, collect, decipher and sort volumes of volatile and diverse information on a daily basis. We needed to convert that information into timely decisions and communicate with clients. I understood of the value of information with regard to any decision-making process. I knew that I could not make proper decisions during litigation without access to all of the information to which I was entitled. It was this desire for information and my being accustomed to obtaining information throughout my career that motivated me to search for the electronic evidence.

Q: In the book you stated: “Never could I envision a claimant lacking financial, educational, and intellectual resources enduring, surviving and succeeding in this process.” Do you think that our legal system, in particular discovery, is broken with regards to costs and complexity — too much for the average Joe?

A: I don’t know if the system is broken, however I think the process is overwhelming. Whether considering procedures, costs, vernacular or time between stages of litigation, it was a challenging experience. I consider myself fortunate to have possessed the educational, financial and emotional resources to withstand the process. A party lacking any of these resources is at a disadvantage.

Q: You had many opportunities throughout this ordeal to settle. You depleted your bank accounts, changed your lifestyle and devoted your life to this matter. Did you consider settling at any point?

A: Any responsible party to litigation must “consider” settlement during the process. I considered and reassessed my options at all times. However, once I was granted permission to search for the electronic evidence and while maintaining positive momentum (for the most part) during litigation, settlement became an unviable alternative for me. I was intent on attaining vindication, accountability and justice. For me, settlement would not have accomplished those goals.

Q: You only used three terms to search for evidence on backup tapes: LZ, Laura and Zubulake. This certainly limited your ability to find relevant messages. You correctly state: “… one person’s professional woman was another’s ‘bitch’; one manager’s termination was another’s ‘exit’…” Assuming you agree that keywords are not the most effective way to identify relevant evidence, what role do you see them playing in discovery?

A: In certain cases, there will be a role for keywords. In cases with large amounts of evidence, it will be more efficient to use technology/algorithms to narrow the universe. After filtering data to a manageable size (or in small cases), unique and descriptive keywords can be useful to tailor searches.

Q: In the book you state: “… unlike today, we did not have the option of searching by concept or clusters,” yet the evidence that you needed was found. Do you think there was other evidence out there that could have proven your case earlier or been more convincing to a jury?

A: Yes, I believe there was evidence in my case that was not found. I devote a chapter in my book (Chapter 8: Lost & Found) discussing why I believe, for various reasons, evidence remained lost and was not found. I do not know if it would have proven my case earlier. Whether it would have been more convincing to a jury is debatable. Based on the verdict, I believe the jury was already convinced.

Q: What are your thoughts about predictive coding and other advanced analytics that are becoming mainstream in discovery?

A: Technology has impacted all aspects of our lives and many professions. The law is no different. There is a role for analytics during discovery. However, the process needs to be perfected, tested, explained, understood and accepted by all parties before it becomes “mainstream.” I do not see technology as a panacea, however it will improve efficiency and will become increasingly accepted.

Q: What was the lowest point of the process for you?

A: The Zubulake IV opinion — the unsuccessful attempt at adverse inference. This was a great disappointment and the point I believed we lost momentum. I knew I could not negotiate without positive momentum so my challenge was to regain that momentum. Thus, we filed the motion that resulted in Zubulake V.

Q: Which Zubulake decision do you think will have or has had the most influence in the legal world?

A: Undoubtedly Zubulake I. While many may consider the opinions that defined lawyer’s obligations during e-discovery as the most influential, without the ability to search for evidence (granted in Zubulake I), those opinions never would have been.

Q: Ten years ago, email arguably reigned as the primary source for evidence when it came to finding off-the-cuff remarks. Today we have many more sources of evidence, such as social media and ESI from mobile devices. Do you think your case would have been more complicated if you had all these other sources of evidence to contemplate and go after?

A: Yes, I think it would have been more complicated — any added burden would have complicated matters. Please remember, back then, there were few legal guidelines that considered electronic documents, let alone anything like social media. However, at its core, the search for evidence on any electronic platform has basic principles — it needs to be relevant, credible, and of convincing quality and integrity. So what I contemplated back then for email would have likely applied to other media today.

Q: One of the main points of the matter was the accessibility of data stored on backup tapes and who was going to pay for the restoration of that data. You stated “In the event of wrongdoing, there was every incentive for the transgressor to convert accessible data to inaccessible,” an astute observation. Do you think courts in general understand technical issues enough to make such broad generalization and categorization of ESI,the result of which may affect the outcome of a matter.

A: Generally, I think the answer is no. However, I believe courts are making progress. I think it tends to be a function of location — certain districts appear to be more advanced than others. The good news is that through case law, education, seminars and legal literature everyone is learning.

Q: At one point the jury was given an adverse inference instruction with regards to the evidence that was either missing or destroyed. Were you surprised when afterwards one of the jurors stated they did not take that into consideration and only considered the evidence that was available?

A: Initially, I was surprised. However, upon consideration this statement made absolute sense. I discuss this issue in my book.

Q: Regarding your request for an adverse inference instruction you stated: “… never again would I proceed with a motion without fully understanding the criteria necessary to achieve success.” This again shows your direct involvement with the matter, but I wondered where was your legal counsel on this issue. Were they not advising you on this topic?

A: This particular statement was intended to be a self-criticism. I consider it one of those life lessons I learned during litigation. I no longer make important decisions unless I am certain that I fully understand the situation.

Q: Throughout the book it was clear that the steps taken by UBS were woefully insufficient when it came to preserving and producing ESI. They failed to send hold letters to key custodians, lost backup tapes, failed to produce evidence that was accessible and other evidence was deleted. Without specifically addressing UBS or your case, can you opine on what measures large organizations might implement to be better prepared for discovery and litigation?

A: A simple response would be to recommend that management, counsel and boards understand e-discovery obligations, risks and costs and develop, communicate and enforce policies and procedures. However, this response would not address the real challenge.

One reason I wrote my book was to explain to readers that my case was really not about e-discovery. It was, in part, about the information—this is important for organizations to understand. The e-discovery rulings came about as a result of my search for information, not the other way around. I am pleased that readers of my book increasingly recognize that my case was essentially an Information Governance case study — long before the phrase Information Governance became popular.

My case demonstrated the value of information — the importance of understanding, preserving, locating, collecting, assessing and applying the information to a business situation. Organizations should proactively manage information as they would any valuable asset.

Once a framework is established and accountability assigned to organize and manage information (as a business function), legal and IT departments can leverage it to mitigate discovery/ litigation risks and costs while the business side (marketing, sales, production, finance, etc.) also benefit. Whether an organization establishes an internal department or outsources its e-discovery efforts, the knowledge of how, where and what information is created and exists is invaluable.

Q: What one thing would you have done differently if you had the chance to do it all over again?

A: Given the outcome of my case, I would not have done anything differently. It was not a perfectly executed case, but a pretty good one. Looking back, it is fair to say that I learned from my mistakes along the way. If I had not made those mistakes, my subsequent decisions and strategy may have deviated and the outcome may have been different.

If pressured to provide a response, there are things that I could have done differently. For example, I could have selected different custodians, more monthly tapes covering a wider time period, more creative keywords. I could have made an effort to become educated about technology. I never requested metadata because I was unaware it existed.

Overall, all things constant, I would do it the same way. I have no complaints, no regrets.

Peter Coons is a senior vice president at D4, providing eDiscovery and digital forensics consulting services to clients. Peter is a Certified Information Systems Security Professional (CISSP), an EnCase Certified Examiner (EnCE), an Access Data Certified Examiner (ACE), and a Certified Computer Examiner (CCE). He belongs to various digital investigation and information security based organizations. Peter holds a master’s degree in Digital Forensics Management from Champlain College and a bachelor’s degree in Economics from the State University of New York at Oneonta.

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