Whilst it was interesting to hear Laura Zubulake’s behind-the-scenes account of the case which made her name, stories of old battles do not necessarily equip us for the war which follows.
As I recounted in my last post, I have been at the Carmel Valley eDiscovery Retreat, miles from anywhere in a remote spot in northern California. Apart from the rural location and the more reflective pace which that brings, little distinguishes this event from the many other conferences which I attend. There is a finite range of subjects, and many of the speakers, the vendors and the delegates are people one sees at other places. One does not necessarily want innovation (please no – no ground-breaking cases, no “revolutionary” new software) but the talks by and discussions with different permutations of people are valuable, especially when you don’t have to rush to your next demo, session or meeting as you do at some conferences.
There is a growing feeling, in the US and the UK alike, that it is time that we moved on from the basic elements of eDiscovery / eDisclosure. It is not that the work is done to complete some notional Phase 1. Horror stories abound, of lawyers taking no steps to preserve data, of work which is unnecessary or duplicated, of aggressive tactical play calculated to achieve nothing but extended timelines and wasted costs. We seem, however, to be going at the speed of the slowest members of the ediscovery wagon train, and it is perhaps time to leave them to be picked off by hostile courts and unfriendly clients. The US sets itself higher targets than the rest of us in terms of the procedural hurdles, as well as the volumes, and the falls are correspondingly greater. The resulting debate and discussion is inevitably higher in the US and the role of an outsider is to pick out those things which are of universal application. As in the UK, it so often comes back to the fundamental objectives behind the rules – the “just, speedy and inexpensive” mantra of the FRCP’s Rule 1 and the “overriding objective” in England & Wales.
Things do not develop at a steady pace. A few days ago, the big topic for those interested in law, privacy and the media concerned the right of dim, overpaid ball-kickers to keep their penises in their popsies but out of the papers. That seems like history now since allegations first surfaced about Rupert Murdoch’s News International. The last few days have seen hacking allegations so base as to be almost incredible, arrests, a whistle-blower’s apparent suicide, allegations of police bribery and the resignation of senior policemen, the sudden closing of a popular newspaper, the collapse of a major media sale, the rocking of a vast international business empire, high-level investigations around the world and, farcically, an unexpected heroine in Uncle Rupe’s wife Wendi as she attacked a custard-pie thrower in the Houses of Parliament.
Apparently trivial things can spark major events. On 1 December 1955, Rosa Parks refused to give up her bus seat to a white passenger, the pebble which started the avalanche of desegregation. On 9 October 2001, UBS sacked Laura Zubulake, starting a train of events which ended – well, has it ended? We were given the Rosa Parks parallel when Zubulake was introduced as the opening keynote speaker. There are not many people whose names become a kind of shorthand for an epoch-making change; Attila comes to mind for some reason. Judge Schiendlin’s award of enormous sanctions against UBS for its discovery failures had an effect on ediscovery equivalent to Attila’s visit to Rome.
Zubulake was there to tell us about it. I took copious notes but, scanning them a few days later, I am pushed to find very much in her account which is of value to those conducting electronic discovery in 2011. It was a bit like hearing David telling in old age exactly how he felled Goliath, the details of stone, sling and ballistics all rather less illuminating than one might hope. Sling design has moved on; the principles of giant-killing set by Zubulake’s case are well established.
The problem now is mass education in what have become everyday issues. Zubulake’s case certainly made preservation an everyday issue, but the peculiarities of that case – by which I mean the combination of otherwise ordinary factors which made it peculiar – gave us an example too extreme to be of general application. The financial sector may be the worst, but it is not the only, industry whose middle-to-senior management includes crass boors who treat other peoples’ jobs as disposable items; many companies’ information management is so bad that it is hard to distinguish between duplicity and incompetence when documents are not produced; the ball often gets dropped between parties and their lawyers, each thinking that the other has the thing under control; you get forceful clients like Zubulake who (as she was at pains to tell us several times) read everything and decided strategy and who are, sometimes, proved right by events; occasionally a case comes before a judge who gives the impression that he or she has been waiting for just that kind of case.
Such permutations may give us a case with seismic impact (I am sitting right on the San Andreas Fault as I write this, whence the imagery) and may change the landscape, but it does not necessarily make a model story. It would also be fair to say that a person who has been wronged, who fought back against all odds and who was vindicated, does not necessarily emerge simpatico as a result, and that one can follow a judge’s reasoning in a particular case, and respect his or her intent, whilst regretting the policy implications of the conclusion. If anything made the discovery tail wag the litigation dog, it was this case. The $29.3 million awarded to Zubulake has been dwarfed many times over by the costs incurred in not being the next UBS.
So what did Laura Zubulake actually say which is of lasting value? Some things need repeating whenever two or three are gathered together: the date of preservation is always important and frequently uncertain; lawyers and clients have joint responsibility; the shades of meaning between negligence, gross negligence, wilful misconduct and the rest are hard to define; companies should “embody discovery in a broader, more holistic process for the benefit of the company” as Zubulake put it. She emphasised that we “now have clarity which we did not have then” – new rules, the EDRM, the Sedona Cooperation Proclamation and (she emphasised particularly) the Information Governance Reference Model.
Zubulake’s role as midwife to the new ediscovery world entitles her to a respectful hearing, without giving her a special view on where the resulting wayward child should go next. I pick one thing from her speech which is worth passing on. She said in opening, and repeated often, some variant on “I was the detail person in my own legal team”. This included reading every email, and studying them for meaning and nuance and for clues which might point to other things, including gaps and omissions.
That is more easily done, of course, if you are an unemployed investment banker with the brain, the background knowledge, the personal motivation and the time. Time and expense makes it impossible to have a “detail person” for most cases. There is a message for the rest of us though: all this stuff we handle and manage and pour into increasingly sophisticated technology are the clients’ documents. Cooperation between lawyer and client was one of the themes of the Zubulake case at a high level – the shared responsibility for preserving, collecting and producing them. It is often necessary, also, to have someone who has an eye on the context and not just on the raw data. Modern data analytics tools are amazing in their power, but only a human who knows something of the business and the people can say what is important, and what is missing. That will amost certainly be someone from the client.
Laura Zubulake’s attention to detail turned a fairly ordinary tale of office gender bias into a $29.3 million victory which changed the ediscovery world or at least the US part of it. To someone from England & Wales, where we seem to manage a world-class justice system without all this, the legal hold requirement developed since Zubulake seems designed to achieve the opposite of what is meant by “just, speedy and inexpensive”.
I will not stop now to explain why this does not give licence to parties to do what they like – see my article called You do not need the fear of sanctions to get value from legal hold software for a summary of the present position in my own jurisdiction and one called Rybak v Langbar sends warning to those who destroy evidence for an example of appropriate sanctions for inappropriate conduct.
My mention of News International at the top of this article was not mere local colour. It is suggested (implied, hinted, alleged, commonly supposed, any term you like short of known) that there has been much deliberate document destruction at Wapping; it has even been suggested that The News of the World was closed down in order to make this possible. There are enough people out there with prospective civil claims, quite apart from any other investigations, for this to be the time when the UK’s preservation principles are tested properly. We keep our fingers crossed, and hope that whatever emerges is limited to its facts, its scale and its culpability, and does not send us down the same extravagant, wasteful, disproportionate route as Zubulake’s case did for preservation in US civil proceedings.
Three closing points: two Symantec blog posts here and here give good straight-up-and-down reports of Laura Zubulake’s speech; the future of FRCP preservation was discussed in the closing judicial panel at Carmel, and I will cover what was said in a separate post; and nothing said here under-estimates UBS’s failures or detracts from Laura Zubulake’s achievement on those facts.
Ms Zubulake points out that the original version of this article did not correctly identify the person who introduced her speech, so I have removed the name. She has made various other observations which I will come back to in due course.