United States District Court Judge Shira A. Scheindlin issued five groundbreaking opinions in 2003 and 2004, on the now very much known case of Zubulake v UBS Warburg. This case is generally considered the first definitive case in the United States on a wide range of electronic discovery issues. These issues include:
- Data sampling
- The scope of the duty to preserve electronic evidence during the course of the litigation
- The imposition of fines for the destruction/spoliation of electronic evidence
- The lawyer’s duty to monitor their clients’ compliance with electronic data preservation and production
- The ability for the party who has to disclose information, to shift the costs of restoring “inaccessible” back up tapes to the requesting party
Now the same judge has issued recently some further opinions on this matter. http://www.eddupdate.com/2010/01/zubulake-revisted.html is a very good article on negligence and gross negligence in connection preservation of and search for ESI, and the judge in this case claims that:
“[T]he admitted failure to preserve some records or search at all for others…leads inexorably to the conclusion that relevant records have been lost or destroyed.” And pretty much this means that relying on end users to preserve and classify data is not going to cut it in court.