Zubulake on Importance of Client Involvement in eDiscovery Process and Evolution of Information Governance

[AlliWalt]

Pretty exciting time here in the eDiscovery world at the Carmel Valley Ranch this week!  Not too long ago, we at Symantec had our annual off-site at the Carmel Valley Ranch and dug deep into our Enterprise Vault 10 launch as well as what our eDiscovery plans were for FY12.  That was in April, and now in July, I am here at the same venue with Clearwell now part of Symantec, in our first event together.  I remember having numerous conversations intra company in April about what we needed to do in order to give our customers the full eDiscovery capability they were looking for and how to complete the Information Governance offering.  With our landmark acquisition, and its tremendous effect on the eDiscovery market, we now look to another landmark event.

Monday kicked off with Laura Zubulake’s keynote address giving an overview of what her personal experience was in the famous Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003) case.  In all the times I have read, referenced, and distinguished that case, I never actually had a mental picture of what she looked like.  All I ever pictured was a litigation hold letter, cost-shifting math and the duty to preserve.  It was quite interesting to attach a face to a name I have said at least a thousand times.  After hearing her speak, I can see how she persevered in that case.  She is articulate, determined, quite funny and a creative thinker.  From the time of her filing, until the end of her case, was approximately 7 years. It was, as she describes, the quintessential David and Goliath tale. 

Aside from her recounting of the actual stages of the litigation and their outcomes, she had some main points that are beneficial to share.  When she filed in 2002, there was no such thing as eDiscovery.  She took on a paramount role in the motions drafting and construction of a spreadsheet that tracked from printed paper emails what the contents of them were.  Laboriously, she tracked these emails to which backup tapes this information would likely reside on, who the important custodians were, and the important key words to search and applicable the date ranges. She stresses not only the importance of utilizing new technology today to avoid the painstaking frontiers she embarked upon, but also the invaluable importance of involving the client in the eDiscovery process.  Custodian interviews and lawyers integrating their clients’ knowledge into eDiscovery processes need to be exercised as complimentary to the new technology.  She speaks from personal experience on this issue as she was the one most intimate with the people, terminology and facts of her own case.  I got the sense that she thinks technology aims to replace that client knowledge at times, and her own experience has taught her that this piece is an indispensable part of the iterative eDiscovery process.

Moreover, she presented some staggering data from a 2010 Kroll Survey that indicated only 24% of companies are concerned about data preservation. She spent significant time expressing her disbelief that while we have come quite a ways with regard to the technology, the fact that after the Zubulake decision not every company in the US has a document retention policy and/or a means to preserve their data is appalling.  Given the high stakes at issue for failure to preserve, she seemed, as many of us do, perplexed why legal and IT departments have not gotten more buttoned up on this important issue. She correctly commented that you cannot collect, search and analyze the data you do not have.  If you do not have a policy then you have no basis for not having the information sought in discovery, and if you do have a policy, but don’t have your technology executing on that policy, then you are failing to meet your duty to preserve if you are in reasonable anticipation of litigation.

In her instance, UBS was on notice to begin preserving when she filed her EEOC claim which they failed to do.   She does note that the duty to preserve is difficult to detect and is more obvious in hindsight.  The only solution in my view to addressing the risk associated with failing to preserve is to have a system, a policy and a means by which to actually archive data and to issue litigation holds.

This brings me to the last point I wanted to share from her address which I found very refreshing.  Her last slide was a list of key events that have taken place since her case which included: the advent of the EDRM (2005), FRCP Amendments (2006), Sedona’s Cooperation Proclamation (2008), and finally the Information Governance Reference Model (2009).  Literally, her last point was stressing that if we can learn anything from her experience it is to be proactive about the management of data and to incorporate the stakeholders of the business into the company’s policies. This can be accomplished through archiving, training and communication.

At some point, we all get tunnel vision in the eDiscovery space as we deal with the logistics of the technology we are deploying, or the most recent ruling from a set of specific facts in any given jurisdiction that draw some more lines about what is expected of companies.  Laura Zubulake was able to widen that lens by sharing her real world experience and to remind us once again about the big picture.  Data is growing, the ways in which we communicate are multiplying, litigation can be expensive and take many years, therefore, why not proactively get a handle on it now? If not, the consequences are dire. She is living proof. 

In 2011, for a company to ignore these issues and fail to implement the proper technologies, policies and processes now that there are viable tools available for them is difficult to understand. Especially since the cost to do so is so much less than risking even one major eDiscovery event.  

I would be interested in any corporate comments about what challenges to being proactive with in information governance you are experiencing?