It has now been over eight years since Judge Scheindlin began issuing her landmark opinions in Zubulake v. UBS Warburg. Those orders not only shaped the outcome of that particular case, they permanently changed the discovery phase of litigation. Discovery no longer begins with Rule 34 requests, the Rule 26(f) conference or Initial Disclosures. Indeed, it begins long before the filing of a complaint. Discovery now commences with pre-litigation information management. For how an organization stores and manages its data will go a long way to determining whether it can meet the demands of discovery in 2011.
This point was highlighted this week by none other than Laura Zubulake in her keynote address at the Carmel Valley eDiscovery Retreat. As my colleague, Allison Walton, pointed out in her recent blog post, Ms. Zubulake emphasized that organizations must be proactive with their information governance plan to ensure that data required for business, legal and regulatory purposes is actually retained. Otherwise, companies may fall into the same discovery traps that ensnared UBS Warburg in the Zubulake litigation.
By coincidence, Ms. Zubulake’s message regarding information governance together with the Zubulake opinions, were put to the test this month in Kermode v. University of Mississippi Medical Center (S.D. Miss. July 1, 2011).
In Kermode, the defendant university defeated a sanctions motion due to its effective email retention policy. The university implemented a retention policy that kept emails for 60 days, after which the emails were overwritten and destroyed. Among the emails deleted pursuant to that policy were several that plaintiff argued were relevant to his wrongful termination claims.
Relying on Zubulake IV, the court declined to impose sanctions because the emails in question were overwritten before the duty to preserve was triggered. Drawing on the facts of Zubulake I, the court also cast doubt on whether the destroyed emails had any pertinence to the actions. Unlike Ms. Zubulake, the plaintiff in Kermode failed to make a prima facie showing of relevance as to the emails in question. Because the university followed its established retention policy (just as Ms. Zubulake recommended in her speech), it reduced a stockpile of email, made relevant documents unavailable for discovery and was still protected from sanctions under the Rule 37(e)“safe harbor” provision.
Perhaps the most significant tribute to Zubulake in the Kermode case is its unabashed embrace of the Zubulake opinions. Kermode notes as follows:
- “Federal courts in Mississippi have recognized the Zubulake decisions as ‘setting the benchmark standards for modern discovery and evidence-preservation issues’.”
- “In the absence of binding Fifth Circuit precedent, this Court also considers Zubulake and its progeny persuasive as to the standards for preserving electronic evidence.”
That courts and organizations have embraced the Zubulake decisions and their progeny as the gold standard for discovery practice and corporate information governance strategy is perhaps the best testament to the staying power of that case.