E Discovery

Pooja Shrivastava

E-Discovery Let’s first discuss Discovery to understand e- discovery. Discovery is a pre-trial part of suit in law. This is a phase in which each party can demand documents and other evidences from the other party and even compel the production of evidences under subpoena. Discovery rules are governs under Rule 26 to Rule 37 in federal law. In US some documents are privileged documents, such as letters between solicitors and experts. Discovery is known as disclosure in UK and used in civil litigation. E-discovery also referred as ESI (Electronically Stored Information).It’s a type of discovery which deals with the information in electronic format, this is a process in which e-data is sought, located, secured and searched for using it as evidence in civil cases. E-discovery can be carried out offline on a particular computer or it can be conducted on a network. In e-discovery, data of all types can serve as evidence. This can include text, images, calendar files, databases, spreadsheets, audio files, animation, Web sites, e-mail, instant messaging chat, documents such as MS office or Open Office files, accounting database, Cad/Cam files and computer programs. Even malware such as viruses, Trojans and spy ware can be secured and investigated. The updated Federal Rules of Civil Procedure (FRCP) make electronically stored information (ESI) as important in litigation matters as paper-based documents. The rules now explicitly designate ESI as discoverable in a federal legal proceeding. "With 40% of corporate information spending its entire life in electronic form, ESI has become very important in litigation," says Tom Russo, a member of the Corporate Counsel Technology Institute at Widener University School of Law, Wilmington, DE, as well as a faculty member at the National Judicial College in Reno, NV. E-discovery rules is subject to amendments to the FRCP which are effective from December 1, 2006. Particularly, Rule 16 and 26 are of interest to e-discovery. Rule 16. Pretrial Conferences; Scheduling, Management. Rule 26. General Provisions Governing Discovery; Duty of Disclosure Important case in the History of E-Discovery:

Zubulake v. UBS Warburg, L.L.C., 217 F.R.D. 309, 322 (S.D.N.Y. 2003). This first opinion addresses the legal standard for determining the cost allocation for producing e-mails contained on backup tapes. Basic facts of this case: the plaintiff, Laura Zubulake, 44, was the director of the bank’s Asian shares sales desk in New York with an annual salary of $500,000. She sued the Swiss financial giant for gender discrimination and illegal retaliation. In her words, noted in her personal comment to this blog below (which caused me to revise this case description), she complained of: “denial and removal from professional responsibilities, exclusion from business outings, being belitted and generally treated different from my male colleagues.” During e-discovery she found emails from her employer confirming these allegations. The supervisor, and many of his colleagues, tried to cover up by deleting emails and denying everything. Judge Scheindlin and the jury did not buy it, and ultimately Zubulake was awarded Ten Million

Pooja Shrivastava Dollars in pay, and Nineteen Million in Punitive Damages, for a total award of $29,000,000.00. Zubulake III, Zubulake v. UBS Warburg LLC, 216 F.R.D. 280 (S.D.N.Y. 2003) This decision allocates the backup tape restoration costs between Zubulake and UBS with a detailed explanation of the appropriate criteria and weighting. Zubulake IV, Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003) This decision ordered sanctions against UBS for violating its duty to preserve evidence and in the process established a scope of duty to preserve back up tapes, but only in special circumstances. Zubulake V, Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004) Zubulake V requires outside counsel to make certain that all potentially relevant information is identified and placed “on hold”. In the words of Judge Scheindlin: To do this, counsel must become fully familiar with her client’s document retention policies, as well as the client’s data retention architecture. This will invariably involve speaking with information technology personnel, who can explain system-wide backup procedures and the actual (as opposed to theoretical) implementation of the firm’s recycling policy. It will also involve communicating with the “key players” in the litigation, in order to understand how they stored information. Zubulake VI Zubulake v. UBS Warburg LLC., 382 F.Supp.2d 536 (S.D.N.Y. 2005), Defendants moved to preclude the introduction of evidence regarding the court's previous decisions in the case, including the imposition of sanctions on UBS. Granting the motion, the court agreed with defendants that the earlier decisions were irrelevant to plaintiff's discrimination claims and would unfairly prejudice UBS. The court noted that the jurors would be told all they need to know through the evidence admitted at trial and through the court's charge, and that there was no need to reference the court's earlier decisions.