Skip to content

Current Ediscovery Methods Owe a Debt to Zubulake Plaintiff and Judge

TRU Staffing Partners March 16, 2023 at 8:30 AM
ediscovery womens history

TRU’s Women's History Month Spotlight

Women’s History Month honorees are women who have contributed to momentous events in history or society. Names frequently mentioned are famous for their feminist accomplishments: Gloria Steinem, Jane Addams, Alice Walker, and many more. TRU would like to add two more names to the Women’s History Month list of honorees: Ediscovery pioneers Laura Zubulake and Judge Shira A. Scheindlin, who quietly and individually defined industry standards for modern-day ediscovery proportionality rules.

Recap of the Zubulake v UBS Warburg Case 

When Zubulake filed a sex discrimination suit against her employer, UBS Warburg, in 2001, she had no idea that she was about to help make history. Feeling that she was passed over for a promotion she deserved, she sued UBS, self-producing hundreds of pages of email documents supporting her case. When UBS failed to supply a comparative number of documents, Zubulake asked that they be pulled from archived media. UBS argued that having to produce all the requested materials was too expensive and burdensome for them to cover, so they wanted Zubulake to pick up the cost. Zubulake responded with a polite, legal version of “talk to the hand”.

Judge Scheindlin’s rulings were made in layers, at different times in the case and went from general to specific applications. At first, they defined the five types of what was considered electronic media in 2001: hard disks, optical disks, magnetic tapes, back-up tapes, and then other, more fragmented data. From there, Judge Scheindlin’s next rulings were groundbreaking, and are still being discussed today. These include the Seven-Factor Test for determining cost shifting responsibilities (known as Zubulake III) in ediscovery, duties for preserving evidence for litigation (Zubulake IV), and Zubulake V, where the judge ruled that the defense counsel failed to place litigation holds on key data and media.

Long story short, Zubulake was awarded $29 million, and later wrote a best-selling book detailing her fight for justice. Scheindlin’s rulings are still used as reference points in many cases today, despite coming before the 2006 Federal Rules of Civil Procedure amendments.

How the Rulings Changed Ediscovery

It could be argued that all the phases of Zubulake and its far-reaching rulings helped put the ediscovery industry on the map. The rulings set standards for how data should be treated, stored, preserved, and maintained. The case made electronic data collection more than a casual “We’ll see if we can get to it,” affair and built walls and a roof over how information should be managed.

In addition, the following rulings have stood the test of time:

  • The Seven-Factor test put the onus on whomever owns the data to locate and produce all necessary materials during litigation.
  • In addition, the test factors outlined by Judge Scheindlin were found to be applicable to nearly every case that relied on ediscovery. The test set new standards and outlined rules against which to measure future cases.
  • Zubulake I and Zubulake V rulings redefined document retention policies that have had wide-ranging impact on all businesses.
  • Zubulake set out requirements for counsel to place litigation holds on documents that could be needed in certain lawsuits. The rulings specified that a retention policy must include document identification and monitoring of information that could be part of a case.
  • Lastly, the rulings in regard to document retention led many organizations to begin moving documents to safe locations within an internal network, both to avoid and ease requirements around cost shifting during discovery. 

How the Zubulake Case Elevated Women’s Rights

The two women at the heart of the Zubulake case have earned their place in women’s history. Judge Scheindlin’s rulings in the Zubulake case are still cited in many current-day lawsuits and were the harbingers for changes in ediscovery rules in 2006.

In addition to Zubulake, Judge Scheindlin presided over cases involving Mayor Rudy Giuliani, John Gotti Jr., the National Football League, and Judith Clark. In a high-profile civil rights case, she certified an agreement between then New York Governor Andrew Cuomo and class-action litigants involving the misuse of solitary confinement in the state’s prison system. In 2014, she won the Stanley Fuld Award for Outstanding Contributions to Commercial Law and Litigation.

For Laura Zubulake, this case was about sex discrimination and retaliation. Zubulake initiated her lawsuit because she felt she was passed over for a role she was promised in favor of a male colleague. When she was hired in a sales role at UBS Warburg in 1999, she was earmarked for her supervisor’s position whenever it might become vacant. When her supervisor left, UBS hired a male for the position. When Zubulake filed her employment discrimination suit, she became a feminist icon for standing up to what was deemed a supervisor’s discriminatory actions.

Whatever the motives behind launching this lawsuit were, they became something very different by the time all the rulings were made. The ediscovery industry was changed forever by the two women behind the Zubulake v. UBS Warburg case, and was made better for their efforts.