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Avoiding the Crossfire: The Lessons of Zubulake V

Posted on August 20th, 2012

“When communication between counsel and client breaks down, conversation becomes “just crossfire,” and there are usually casualties.” Zubulake V, 2004 U.S. Dist. LEXIS 13574 (S.D.N.Y. July 20, 2004).

Zubulake V picks up where the last order left off, being that the Court found the defendants had breached their duty to preserve back up tape email evidence in a gender discrimination case. After re-deposing key defendants, plaintiff Zubulake renewed her motion for sanctions and for an adverse inference instruction due to the egregious actions of the defendants in destroying evidence they had a duty to preserve.

The Court found the defendants breached their duty to preserve evidence in the following respects:

  • Counsel failed to communicate the litigation hold order to all key players;
  • Counsel failed to ascertain each of the key players’ document management habits; and
  • USB employees ignored the instructions of counsel. Id. at 48.

Although the defense attorneys made mistakes, it is ultimately the duty of the parties themselves to follow the law. The Court found spoliation and the destruction of evidence to be willful, and therefore presumed the lost information to be relevant in favor of the plaintiff. Id. at 50. The Court ordered the adverse inference instruction to the jury and ordered the defendants to pay all costs of the late defense production, re-depositions and the cost of the current motion. Id. at 60.

This was the last eDiscovery order in the Zubulake saga and the case finally proceeded to trial. So how did things turn out for Ms. Zubulake? The jury awarded her $9.1 million in compensatory damages and $20.2 million in putative damages, in part due the defendants’ willful destruction of email evidence in contravention of the law. The Zubulake case is one for the law books, and Judge Shira Scheindlin earned much respect for laying down sensible legal groundwork and rationale for eDiscovery rules before any existed.

Although eDiscovery rules and procedures have evolved since Zubulake, similar problems continue to arise and its famous orders have enduring lessons to glean. Call us at 888-313-4457 to learn more about how we provide efficient strategies and solutions to any plaintiff ESI challenge that may arise.

ILS – Plaintiff Electronic Discovery Firm

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