More on electronic discovery An article by Jas…

More on electronic discovery

An article by Jason Krause in the ABA Journal E-Report entitled “E-Discovery Order Changing The Rules: Federal Decision Deals With Who Pays the Costs” reports on the decision of Judge Shira Scheindlin in Zubulake v. UBS Warburg (S.D.N.Y. 5/13/03), a gender discrimination and retaliation case.

In Zubulake, Judge Scheindlin discusses in detail various types of electronic data storage and their relative accessibility, and sets forth a multi-factor standard for evaluating cost-shifting (i.e. whether the party seeking the discovery of electronic records can be made to pay for it). Her order begins the process with a sampling procedure — evaluating a limited number of backup tapes before determining whether all of them must be produced at the responding party’s expense.

On Wednesday, July 9, Judge Scheindlin will be one of the presenters for an ABA TeleConference and Live Audio Webcast entitled “Demystifying Electronic Discovery.” I will be listening with interest. I have not yet encountered serious efforts by opposing counsel to delve into company electronic data. No doubt this is only a matter of time.

Perhaps the cost of this process was overstated in Zubulake in an effort to avoid the discovery — it was said to be $175,000, which seems high to me for a backup restoration process that is supposed to be convenient to perform in the event of an emergency — but then everything is more expensive in New York!

My understanding is that a great deal of information, including deleted e-mails and documents printed but never saved, can be obtained directly from individual computer users’ hard drives, even though all intentional data storage and back up takes place on a network server. This would allow more focused discovery, since at least in basic employment cases only a limited number of users would potentially have relevant information on their machines, as opposed to searching entire large organizational networks which may have hundreds or thousands of users. Judge Scheindlin does not discuss this, but seems to assume the place to start is with the e-mail server, which understandably may be more expensive due to the increased volume of data.

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