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.
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, PORTNOYS COMPLAINT (1967)).

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