Discovery Of Electronic Evidence

• Pages: 87-124

87

CHAPTER VI

DISCOVERY OF ELECTRONIC EVIDENCE

Although practitioners have come to use the acronym “ESI” to refer to

“electronically stored information,” the fact is that with the 2006

amendments to the Federal Rules of Civil Procedure, the Judicial

Conference of the United States formally recognized that today,

“discovery” and so-called “e-discovery” are really one and the same.1

Indeed, for some time now, most discovery has consisted of searching for,

identifying, and producing what many lawyers and judges ominously refer

to as “e-discovery.”2

Antitrust cases invariably involve enormous quantities of ESI stored

in many different forms, spanning myriad technologies, and stored in

multiple countries or even continents. The sheer size of the typical

price-fixing or monopolization action makes discovery disputes and

related motion practice likely, if not inevitable.

A. Historical Development of E-Discovery

In the 1970s, Rule 34(a)—which governs production of documents

and tangible things—was first expanded beyond documents and physical

evidence to include so-called data compilations, in light of the increasing

popularity of computers.3 By the 1990s, however, the vast majority of

business information was stored electronically, and paper became

1. The Advisory Committee on Civil Rules, one of five standing committees

of the Committee on Rules of Practice and Procedure, began hearing about

problems with e-discovery in the mid-1990s and held public forums on the

issue beginning in 2000. See Committee on Rules of Practice and

Procedure of the Judicial Conference of the United States, Report of the

Civil Rules Advisory Committee (2004), available at http://www.

uscourts.gov/rules/comment2005/CVAug04.pdf.

2. See, e.g., SHARON D. NELSON ET AL., THE ELECTRONIC EVIDENCE AND

DISCOVERY HANDBOOK: FORMS, CHECKLISTS, AND GUIDELINES (ABA

Publishing 2006).

3. See FED. R. CIV. P. 34(a) advisory committee notes (2006 amendment).

88 Antitrust Discovery Handbook

primarily in many sectors a secondary means to transmit ESI (e.g.,

printouts of electronic data). As the American public and business

community grew more dependent upon the Internet and email, the Rules

of Civil Procedure did not offer much assistance in handling this

electronic expansion.

Prominent judges began to fill the void. In a series of opinions in the

case Zubulake v. UBS Warburg,4 federal district court judge Shira

Scheindlin provided a framework for determining what data was required

to be produced, and which party bore the costs of production. Expanding

on the Zubulake opinions, Judge Scheindlin issued a decision in 2010 in

Pension Committee of the University of Montreal Pension Plan v. Banc of

America Securities,5 further elaborating on the duties of preservation,

collection, and production, and imposed spoliation and monetary

sanctions on certain parties.

In the 2000s, the Federal Rules of Civil Procedure were amended

several times, and now clarify ESI production obligations. The most

4. 217 F.R.D. 309 (S.D.N.Y. 2003) (“Zubulake I”) (addressing legal standard

for determining cost allocation for producing emails contained on backup

tapes); 230 F.R.D. 290 (S.D.N.Y. 2003) (“Zubulake II”) (addressing

Zubulake’s reporting obligations); 216 F.R.D. 280, 291 (S.D.N.Y. 2003)

(“Zubulake III”) (allocating backup tape restoration costs between plaintiff

and UBS); 220 F.R.D. 212, 215 (S.D.N.Y. 2003) (“Zubulake IV”)

(ordering sanctions against UBS for violating obligation to preserve

evidence); 229 F.R.D. 422 (S.D.N.Y. 2004). Plaintiff Zubulake, who sued

for gender discrimination and retaliation, sought “[a]ll documents

concerning any communication by or between UBS employees concerning

Plaintiff,” and defining “document” to include “without limitation,

electronic or computerized data compilations.” 217 F.R.D. at 312. Even

though UBS argued that accessing the backup tapes would cost roughly

$300,000, Judge Scheindlin suggested sampling and required UBS to

provide five tapes selected by Zubulake and to submit an affidavit

chronicling the details of the search, the time and money spent to enable

the Court to determine how costs would be allocated. After reviewing 68

emails from those tapes that Zubulake cited as highly relevant, Scheindlin

ordered UBS to bear 75% of the cost of retrieving the other 78 tapes. 216

F.R.D. at 290.

5. 685 F. Supp. 2d 456, 462 (S.D.N.Y. 2010) (“By now, it should be

abundantly clear that the duty to preserve means what it says and that a

failure to preserve records—paper or electronic—and to search in the right

places for those records, will inevitably result in the spoliation of

evidence.”) (emphasis added).

Discovery of Electronic Evidence 89

significant set of revisions from an ESI perspective occurred in 2006, and

those amendments are discussed in more detail in section C of this chapter.

At the most basic level, the rule governing requests for production of

documents (originally limited to “documents” and “things”), Rule 34, was

amended to confirm that discovery of ESI “stands on equal footing with

discovery of paper documents.” 6 But there are many more technical

changes, including (a)a revised meet and confer process mandating

discussion of ESI, (b) standardized procedures for asserting privilege or

work product claims after production, (c) limitation of discovery of ESI

from sources that are not reasonably accessible, and (d) limitation of

sanctions for loss or destruction of ESI where appropriate.

B. Significance of Historical E-Discovery Developm ents on M odern

Antitrust Litigation

These changes have particular significance in antitrust cases, which,

as noted above, nearly always involve significant quantities of ESI,

leading to correspondingly significant litigation expenses. To prepare for

antitrust discovery and related contingencies, it is recommended that

practitioners develop a superior understanding of the Federal Rules of

Civil Procedure as amended, the financial and evidentiary impact that ESI

can have in your particular case (e.g., burden and expense, possibility of

cost-shifting sanctions), and a basic understanding of the client’s ESI, how

it is kept, and, perhaps more importantly, how it may be lost.

Even before the rule amendments, Zubulake proved that willful

ignorance of one’s discovery obligations with respect to ESI is no longer

an option.7 As Judge Scheindlin emphasized in Zubulake I, “Lawyers and

their clients need to communicate clearly and effectively with one another

to ensure that litigation proceeds efficiently. When communication

between counsel and client breaks down, conversation becomes ‘just

crossfire’ and there are usually casualties.”8

That being said, even though “e-discovery” may require counsel to

develop a rudimentary knowledge of standard computer technologies and

electronic data storage, lawyers are still entitled to, indeed required to, rely

on their clients. In a paper environment, one commentator noted that an

attorney could rely upon his clients—the custodians of the

6. FED. R. CIV. P. 34(a) advisory committee note (2006 amendment).

7. Zubulake v. UBS Warb urg, 229 F.R.D. 422, 424 (S.D.N.Y. 2004)

(“Zubulake V”).

8. Id. at 423 (quoting PHILIP ROTH, PORTNOY’S COMPLAINT (1967)).