Zubulake comments and my comments about her comments

Laura Zubulake has commented adversely on my post Zubulake in her own words at Carmel. Someone whose name appears in the title of a post is obviously entitled to be heard in response and I must equally obviously reply, albeit with the slight fear that a tennis match will result – I would not want Ms Zubulake to take more time out of her presumably busy ediscovery consultancy practice to engage in debate with some Englishman of whom she has not heard. She has gone on to chase me to publish her comments, so presumably missed my clear statement that I was on holiday – not the only part of my blog which she seems to have missed. If she had read to the end of that post and skimmed the 872 eDiscovery posts which preceded it, it would have been clear what my mission is and why I was disappointed that the eponymous heroine of Zubulake v UBS had not used her name and status to fight for a more proportionate approach to ediscovery.

Disappointment should not be confused with naivety. Equally, Zubulake is not fair on herself. As well as disregarding my context, she has either ignored my genuinely-meant compliments or positively rejected them. My lament was not about what she did say, and certainly not about her presentation of it, but about what was left unsaid. Are we really content with a post-Zubulake world in which, for all the developments in technology, in the rules, and in thinking by the likes of Sedona (all of which she mentioned), the ruinous legacy of her victory remains the standard? One feels that she might have mentioned what I said about that, since that was what my article was really about.

It would be fair to say, I think, that Ms Zubulake saw my article as being all about her. In truth, I had bigger fish to fry. One can give her credit – as I did more than once – for fighting her own battle and winning, whilst nevetheless regretting the wider consequences of her victory. My historical and other parallels seem not to her taste, but I will risk another one: 1940 Britons could admire Rommel’s Blitzkreig attack to the Channel ports whilst being deeply concerned at the implications of its success.

Zubulake’s victory, great though it was for her, was the moment that proportionality nearly died in US civil litigation, and the moment when form and proceeding-with-the-procedures edged out common sense. From that moment parties have had to behave as if every opponent was guilty of concealment whilst defensibly exaggerating their own efforts. We have to make a stand against that, to reach a compromise between formal compliance, completeness and cost, and between all of them and the real objectives – the clients’ objectives, the “just, speedy and inexpensive” objective in FRCP Rule 1 or the overriding objective in the UK.

I don’t begrudge Laura Zubulake her own windfall and I am all for punishing those whose conduct of discovery falls below an appropriate standard. My real fear, as expressed in the article, is that the UK will follow the US into preservation hell as the wave of public revulsion against News International turns into litigation. Be careful what you wish for – we have already lost billions in Murdoch investment into BSkyB, together with a 168 year old newspaper and all the jobs which went with it; we may yet lose the Times. By all means pursue the Murdoch empire for proper disclosure, and let them be punished if that is appropriate within the rules, as UBS were punished in Zubulake’s case. Much of my article was concerned, in both senses of that word, with the possibility that the pursuit of News International may drive the UK to lose common sense and proportionality in litigation as happened in the US after Zubulake’s victory. That is not Laura Zubulake’s fault. I did not say that it was.

With that much said by way of introduction, let’s dissect Laura Zubulake’s comment as fairly as possible:

I am sorry to hear you did not enjoy my keynote speech. I always welcome constructive criticism, particularly when it is professional and constructive. It is funny how references to midwives and Attila only detract from a message.

I don’t necessarily aspire to enjoyment at these things. I deemed the speech sufficiently important to arrive in time to hear it (no small decision starting from the UK) and was disappointed at what seemed to be a missed opportunity by a name of potential influence. I don’t accept her Lit Crit bit: it seems fair to me to describe Zubulake as “midwife” to a new era; Attila found one landscape and left a very different one, defining a new world as he did so, which seems a fair parallel for the post-Zubulake discovery map. Most people seem to like my quirky parallels and illustrations, but you can’t please all of the people all of the time, and one suspects that chez Zubulake is an irony-free zone.

Overall, your blog was perplexing. On the one hand you described listening to me as “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.” While, according to you, I apparently made several points of “lasting value.”

Ah, that irony thing again. It seems almost kinder not to analyse the paragraph to which Zubulake refers, but if I am challenged on it then I must. The “lasting value” point was not a statement but a quasi-rhetorical question “So what did Laura Zubulake actually say which is of lasting value?”. I followed it with a list of her perfectly sensible observations, identifying one – her own attention to detail – which, I said, was worth passing on. Paradoxically, perhaps, she goes on to denigrate that very attribute which I had given her credit for, as we will see below.

Your blog mentions your “copious” notes of my speech. You write that Greg Buckles introduced me as the opening keynote speaker. Mr. Buckles did not introduce me. Are you sure your “copious” notes are accurate? Then again, who needs details?

Hands up on this one – Greg opened the show and someone else took over to introduce Ms Zubulake. I have modified the article accordingly. This seems to be the only challenge to my facts as opposed to my opinions.

You write about the “peculiarities” of my case. I do not recall seeing you in the gallery during my trial. I am sure however you have scoured the trial transcripts to learn about the “peculiarities”.

I defined what I meant by “peculiarities” – “the combination of otherwise ordinary factors which made it peculiar”. They were not points of detail requiring attendance at the trial or attention to the transcripts, but the big issues which are part of the common stock of knowledge about this case and in the random chance which brought these parties and those facts before that judge. “Peculiar” is not just a synonym for “odd”; it also has the meaning “special” and it would be peculiar (in the sense of odd) not to find this case “special” for its outcome if not for its facts.

You declare my attention to detail turned a “fairly ordinary tale of office gender bias” into a million dollar victory which changed the e-discovery world. My attention to detail did not accomplish that, the facts did.

It seems a bit odd (again) for Zubulake to take my genuinely-meant compliment to her tenacity and to reject it. She emphasised her own close study of the documents and their effect on the conduct of the case, and I identified that as important. Someone else has since picked out what I said about that and requoted it with approval. So well done Ms Zubulake, not just for fighting her corner but for making a useful object-lesson out of it. But she rejects the praise. The facts may have won her case, but the central and most interesting part of her talk showed that the facts would not have seen daylight if she had not applied her undoubted talents to digging them out. That is a useful lesson for those engaged in eDiscovery.

As a keynote it is sometimes challenging to incorporate a conference theme into a presentation while appealing to all audience members. Then again, I am sure you have been a keynote speaker on countless occasions and can relate. You must know how difficult it is to speak to the level of some professional participants (e.g. Ms. Walt of Symantec to which your blog refers, http://www.symantec.com/connect/blogs/zubulake-importance-client-involvement-ediscovery-processand-evolution-information-governance) while appealing to others who think they know everything. I can only try my best and attempt to improve with each event.

I would say it is challenging always, not merely sometimes, to craft a keynote speech. Ms Zubulake’s performance was polished, and what she said was well put and for a wide audience. My disappointment, for that is what was expressed in my article, was with what she did not say. Her narrative had a beginning and a middle, but lacked the end which one might hope for. My strong feelings are about Zubulake the case, not Zubulake the person.

Apparently you are a thought leader in e-disclosure and e-discovery based in Oxford. I am curious to your personal experiences with e-discovery. Have you represented a party to litigation involving e-discovery? Have you executed a litigation hold, employed a search, selected search terms? Have you taken a case to trial involving e-discovery? Have you witnessed a trial involving e-discovery? Have you ever stood up for what you believed right? If you have, I would enjoy learning about your experiences. Or do you just lead thoughts?

Conventional English self-effacement won’t really work here. I have been engaged in Disclosure / Discovery full-time since 1993, having previously written litigation software as a litigation lawyer. I moved over largely (not entirely) to commentary in 2007 and travelled 150,000 miles last year, speaking to and (crucially) listening to those engaged in eDiscovery from every angle, not just in the UK and the US, but in Australia, Hong Kong, Singapore and the EU. I have written continually and objectively about every aspect of electronic discovery / disclosure since early 2007. I am a member of the working party which drafted the UK’s recent eDisclosure Practice Direction and Electronic Documents Questionnaire. I have close links with most of the key providers in the market, and with many of the judges who drive thought. I am on the advisory board of conference organisers and attend conferences around the world, usually as a speaker, moderator or panel member, but sometimes (as at Carmel) as a mere observer.

Have I ever stood up for what I believed right? Yes, indeed I have and do, with passion. That is what I was doing in writing the article whose purpose (and contents, indeed) Ms Zubulake has misread or misunderstood.

Yes, you are correct to state that many industries have their share of “crass boors.”

The quoted expression came from me – I used it supportively of Zubulake to describe the people who created the climate in which she was dismissed. Turning it against me (which is what I assume she is doing here) perhaps looked more subtle and pointed in the drafting than it appears when published. The time and effort might be better spent trying to move us on to better things.

It will be clear that I was rather bemused by Ms Zubulake’s comments, which reached me whilst I was away. I annotated the post to show that I would come back to her comments, and finished my holiday. I had barely returned when another comment arrived:

I noticed you added the below to your blog dated July 25, 2011:

“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.”

I would hardly describe my response as “various other observations”.   Since you took the liberty to write about me, I would hope you would have the dignity to post my response in full.  I have received feedback (particularly from conference attendees who witnessed my keynote) about the inappropriateness (readers were shocked and appalled) of your comments about me.  Let the reader decide.  If for whatever reason, you decide not to do so, then this might be the opening to my (long overdue) blog.  In the event you have lost my response I have reprinted below.

“Let the reader decide”. I suspect that “the reader” has more important things to worry about. Although half the world is on holiday, the ediscovery air waves are full of debate about predictive coding and about the certification argument kicked off by Patrick Oot; privacy and hacking provide plenty of stuff for people to be “shocked and appalled” by. I am sorry if what I said caused offence, but that was not my intention, nor do I think that what I wrote warrants the reaction it received.

Addendum

Ms Zubulake replied with this comment:

I too do not want to engage in a tennis match so this will be it.  You should know I fully understood the context of your original blog.  Had the tone been reasonable and professional I would not have taken issue.  It is unfortunate that you did not approach me in Carmel to discuss your disappointment.  I would have welcomed the conversation. Who knows, it may have resulted in a more productive entry for your blog.

I will leave it there.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure. Bookmark the permalink.

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