Zubulake V: The Zubulake Duties – Locate, Communicate, Preserve, and Produce

Zubulake V: The Zubulake Duties – Locate, Communicate, Preserve, and Produce

Thisis the fifth chapter in our Zubulake series.

Zubulake’s suit against UBS was your typical, run on the mill, employment discrimination case.However, along the way it has now become one of the seminal e-discovery cases.

Zubulake V is concerned with the plaintiff’s request for electronically stored information (“ESI”), in particular, e-mails. This motion was made after two years of attempting to get the information that she requested. The court was faced with the issue of whether to issue sanctions on UBS for its failure and delay in producing relevant evidence and if so whether UBS acted negligently, recklessly, or willfully.

The UBS’s lawyers did make some efforts to preserve evidence. They told employees to not delete relevant information. They instructed IT personnel to preserve back up tapes. And they met with key individuals and explained that the need to preserve all relevant evidence. However, it eventually came to light that these efforts were not enough. It was discovered that some back up tapes that stored e-mails had been deleted and that at least one relevant e-mail had been lost.

Judge Scheindlin immediately noted that many of the discovery issues presented in this case were due to the lack of effective communication.

Judge Scheindlin outlined the attorney’s and client’s duty to preserve and produce ESI. In short, counsel has an obligation to instruct his client to preserve relevant information. The client has an obligation to take that instruction to heart.

Ultimately, the court found that Zubulake was prejudiced by the failure to produce relevant e-mails and therefore, UBS was sanctioned with costs and fees.The court also determined that adverse inference instruction based on spoliation was appropriate in this situation.This was based on three elements. One, the defendant was in control of the evidence and had a duty to preserve.Two, the defendant willfully destroyed the records. Three, the destroyed evidence was relevant to Zubulake’s claim.

Attorneys, as well as clients, should be aware of the recommendations made by Judge Scheindlin in regards to e-discovery practices. These include the following:

  1. Communicate Effectively. Attorneys need to talk with the key players involved in the litigation in regards to their discovery obligations. Litigation holds must be issued and attorneys are responsible for re-issuing the litigation hold to remind the employees about their obligation to preserve information. An active role must be taken by counsel to ensure that the litigation hold is closely followed.
  2. Understand the Client’s ESI network. Attorneys should know all the places that ESI is stored and reasonable efforts should be made to identify and preserve relevant ESI.Discussions with key players will help unveil discoverable information.Further, attorneys should know their clients’ document retention policies inside and out.It is wise for the attorney to meet with IT personnel and receive a basic education on the system and policies.
  3. Backup! Attorneys should make sure that their backup materials are identified and retained in a safe place. It may be best for counsel to personally store the backup materials, if there is a small amount. However, if there are a number of backup tapes, they should be placed into storage.
  4. Get Employees to Produce.Attorneys must instruct the employees to produce a copy of all the relevant documents that they have retained.

Shannon is a graduate of Boston College and is currently a third year student at Seton Hall Law.

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