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The Dog Ate My Hard Drive
In recent years, electronically stored information ' or 'ESI' as it has come to be known ' has become an increasingly 'hot topic' during discovery. Many attorneys now include questions regarding ESI in their standard discovery requests, and several of the recently enacted amendments to the Federal Rules of Civil Procedure address ESI-related discovery. Therefore, clients and counsel alike must have a clear understanding of their obligation to preserve ESI and the proper process for doing so.
Clarification Comes from Zubulake
The cornerstone case regarding ESI-related discovery and, in particular, preservation of ESI, is Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (2003). In February 2002, the Zubulake plaintiff filed suit alleging that her former employer had discriminated against her on the basis of her gender, failed to promote her and retaliated against her in violation of federal, state and city laws. During the discovery period, plaintiff requested production of certain e-mails and the computerized back-up tapes of the e-mails from defendant. Several heated disputes then arose between the parties concerning the discovery of this ESI. In a series of five opinions, the district court addressed these discovery disputes. These five opinions have now set the standard for discovery of ESI across the country.
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