The Masters Conference 2008: Corporate Viewpoints and the Laura Zubulake Story

Masters LogoThe last session I attended today was entitled “Implications from a Corporate Viewpoint Since FRCP Amendments” featuring:

Ms. Zubulake started off the panel and immediately captivated the entire room. Ms. Zubulake walked the audience through the ups and downs of her three year ordeal in the Zubulake v. UBS Warburg case.

Ms. Zubulake emphasized that her case was not about e-discovery, but the gender discrimination she experienced while working for UBS Warburg.

She then sought to dispel a few myths about her case. She stated she has read many articles about her case that claim the adverse inference instruction was a prominent factor in the jury decision in her favor. She said this was not true and follow up interviews with jury members confirmed that they were swayed more by the e-mail evidence found in the backup tapes. (Sharon Nelson over on her Ride the Lightning blog discusses this a bit as well.)

Ms. Zubulake admitted that the decision to actually file her claim in February 2002 was one of the hardest decisions of her entire life. She greatly enjoyed her job, and begged her superiors to transfer her many times before her termination.

Discovery for the Zubulake case started in June 2002 and went through October 2004. Ms. Zubulake expressed her exasperation with the length of time that it took for discovery saying that some of the most important and relevant evidence was not even produced to her until early 2004.

Ms. Zubulake believes that the first decision was the most important opinion of all since it gave her the authority to search for e-mails which she knew were absolutely crucial to discovery.

Ms. Zubulake described how active she became in her case, even becoming a senior member of her legal team. She personally selected the five individuals (custodians) to search because she stated that she was in the best position to actually know what happened and who was involved.

Keywords became a very important aspect of her search and she mentioned that she now regrets she was not more “creative” in her keyword selection because she believes that she could have potentially found more relevant information.

The other panelists provided some interesting insight into various corporate e-discovery viewpoints, but all of them had a special word of empathy for Ms. Zubulake. Likewise, the audience had several questions for Ms. Zubulake that were delivered with a lot of respect.

In law school, we are taught to leave emotion out of our legal analysis. And while I know the Zubulake opinions backwards and forwards, and I’ve heard numerous people opine on the merits and facts of the case, hearing Ms. Zubulake tell her side of the story forced me to consider the impact of the case on a real person, rather than simply use the case as a ubiquitous guide for corporate e-discovery.

Ms. Zubulake detailed that she was un-employed for the 3 years during her case, and as a result “didn’t spend a dime” on anything. She mentioned the support of her mother throughout the ordeal, who was a legal secretary for many years.

And most telling for me personally, was hearing about the “technology” that Ms. Zubulake used during her case. She recounted that e-mails would be produced to her lawyer in hard copy. She would go to her lawyer’s office, make copies, and then take them home to her Dell computer to type information from each e-mail into a large Excel spreadsheet. She recorded information such as Bates number, author, recipient, cc, bcc, subject, body, etc. This was her document database/index and she mentioned that it helped tremendously when her legal team needed to pull up a particular document. And because she actually typed everything into the spreadsheet herself, Ms. Zubulake commented that she basically memorized every aspect of her case, and thus became the most valuable resource for her team.

Another telling comment from Ms. Zubulake: “Thank god for the Internet – that’s where I learned, and downloaded case law.”

One last question to Ms. Zubulake asked if there was a time she would have given up the fight. Her response that there were some down times; it was “not a perfect litigation, but I don’t have any regrets.”