Electronic Discovery and How This Practice Finds

¶ … electronic discovery and how this practice finds lawyers balancing a very thin line of appropriate applications of electronic evidence within the legal framework of court. The article entitled "Party Plagued by Electronic Discovery Missteps Loses at Trial" was written by Christopher A. Lewis, Mary Ann Mullaney and Stephen A. Orlofsky and can be found in May 3, 2005 edition of The Legal Intelligencer. This source was found courtesy of Law.com.

Electronic discovery can be described as the process during litigation that happens during the traditional discovery of information before going to a trial but it involves the procurement of all electronic information and not just information available on paper. During the last two decades we have nearly seen all forms of data migrate to the digital realm. Craig Ball surmises, "Statisticians estimate that only 5 to 7% of all information is born outside of the computer, and very little even finds its way to paper" (1).

Ironically, this process has never really been in the limelight during its last twenty years of involvement in the legal process. It has just been recently that electronic discovery has fallen under scrutiny. Today we live in a world set at the speed of light due to increased telecommunication and computer technologies used in business practice. Despite the central role that electronic information plays within the business world and the legal framework in which businesses are ran, electronic data discovery efforts ran an ambiguous process for attorneys.

Either the process is completely disregarded or "pursued in such epic proportions that discovery dethrones the merits as the focal point of the case" (Ball 1). Few attorneys understand the ramifications of not using electronic discovery not only to the benefit of the client and case but also failure to use it correctly. As a result much of discovery resorts to physical items or paper trails.

The changing face of the discovery process has proposed changes in the rules of the procedure and this will require lawyers to discuss new ways of preserving electronic evidence important to a case like databases, spreadsheets, voicemail, video and email. Basically this opens discovery up to including an insurmountable amount of information that must be presented in court during a trial. This leaves the attorneys on both sides facing a very time-consuming, expensive and arduous process of profiling data.

This has brought up another issue in this complex arena; what is accessible and therefore, required during discovery? One particular case put the issue of electronic discovery on the map. This case is Zubulake v. UBS Warburg, L.L.C., 217 F.R.D. 309 and this case will be discussed in the paragraphs below. The case of Zubulake v. UBS Warburg was supposed to be a typical routine employment discrimination dispute.

It turned into a landmark case where the jury awarded an equities trader formerly employed by the defendant $9.1 million in compensatory damages and almost $20.2 million in punitive damages (Lewis, Mullaney and Orlofsky 1) based on mistakes during of electronic information during the discovery process. Laura Zubulake was hired at UBS as a director and senior salesperson in its U.S. Asian Equities Sales Desk. During her hiring process, she was told that she would be considered for a desk manager position when one became available.

When one such position became available in 2000, UBS did not consider her but instead hired a male by the name of Matthew Chapin. Zubulake filed a charge of gender discrimination with the EEOC in 2001 based on that Mr. Chapin treated her differently than her other teammates who were mostly male. She was fired when UBS found out about her filing the charges. UBS Warburg is one of the world's leading financial firms but yet the corporation failed to produce adequate e-mail documents.

The court opined that "the litigation's pre-trial phase concerned deficiencies in UBS's e-mail production" (Lewis, Mullaney and Orlofsky 1) meaning that the company failed to hand over adequate documentation even after almost three years of discovery. Legal Issues The main legal issue here with this case is the fact that UBS failed to present e-mail findings during the discovery process.

What made Zubulake's case very strong was the fact she as a client provided her attorney with the electronic evidence in the form of 450 pages of e-mail correspondence that detailed any communication concerning her and other UBS employees. In contrast, UBS was only able to present 100 pages of responsive e-mails and this proved problematic. As a result, the court ordered UBS to provide more emails, specifically messages between and from Chapin, Chapin's supervisor, two of Zubulake's co-workers on the desk and the human resources representative who handled issues.