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·A. How would the case be affected if Laura Zubulake, before she
was terminated, had forwarded some of the e-mails that she was seeking to
obtain via the discovery process to her personal e-mail account?

B. Let’s say that her company had a corporate security policy that prevented
UBS employees from forwarding their business emails to a personal email
account. Laura forwarded the emails to her personal email account anyhow
because she suspected that retrieving the emails through the discovery process
would be an issue once she filed suit. If those emails were evidence that she
was wrongly terminated, would she be able to use them as evidence or would they
be thrown out due to her breaking the corporate security policy?

C. If Laura presented emails that she forwarded from her business account –
would they be considered valid evidence artifacts – given the fact that it may
be difficult to prove that the emails were not tainted (modified or partially
deleted)?D. Discuss a case
(resolved in since January 2015) involving e-discovery and the aspects
litigated.

You must address all 4 parts in your initial response.View PowerPoint presentations:Electronic Discovery & Digital Evidence (overview)Zubulake v. USB WarburgPreservation of DocumentsPreservation Has Arisen
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Zubulake v. USB Warburg
Landmark Cases for ESI
“Reasonably Anticipate” Litigation
Duty to Preserve
• Zubulake v. UBS Warburg predominant case in
transforming discovery from mainly paper-based world
to electronic one
– Ordinary employment discrimination case started in 2002
lead to 4 ground breaking opinions from 5 documented
cases
– UBS (the employer) produced 100 emails in response to
Zubulake’s (the employee) request for production of all
communication between UBS employees about her. UBS
insisted its production was complete.
– Through depositions and other inconsistencies, Zubulake
determined UBS never searched backup tapes, which
contained additional potentially relevant emails
• Zubulake v. UBS Warburg (con’t)
– First three opinions dealt with
• Difference in preserving documents stored in:
– Accessible locations (e.g. Emails in inboxes) or
– Inaccessible locations (e.g. Emails on backup tapes)
• Allocation of costs between parties to restore backup
tapes and search for relevant data
– Judge presented seven-factor test to determine
whether and how to allocate costs
• In Zubulake resulted in UBS paying for 75% of cost for
retrieving relevant email from backups
• Zubulake v. UBS Warburg (con’t)
– Zubulake III – Revealed some of backup tapes missing
• Held UBS had responsibility to preserve ESI when it
“reasonably anticipated” Zubulake’s complaint
– Zubulake IV – defined trigger date
• Before filing of EEO complaint
• When supervisors expressed concern that she might sue
– Supervisors regularly marking any communication involving
Zubulake, whether or not it involved counsel or legal advise,
protected work products
– Showed UBS anticipated litigation
• Zubulake v. UBS Warburg (con’t)
– Zubulake IV (con’t)
• Scope of duty to preserve
– Not every shred of information – crippling to organizations
– Must not destroy unique, relevant evidence that might be
useful to an adversary
• Use of “litigation hold”
– suspend routine document retention/destruction policies
– to ensure preservation of relevant documents
– Counsel must monitor and oversee compliance
• Zubulake v. UBS Warburg (con’t)
– Zubulake V – Imposition of adverse inference
instruction
• Even after UBS recovered some backup tapes, belated
production and deletion of some email, harmed Zubulake’s
case
• Adverse inference instruction given to jury:
– Instructed UBS deleted information after it had duty to preserve;
and
– Deleted information was harmful to UBS
Jury awarded Zubulake $29.2 million verses the $9 million
compensatory damages requested. In part, high award
believed to be the result of jury’s distrust that UBS had acted
in good faith
Author of the Zubulake Opinions Decides New E-Discovery Case, Chiding Those With
A “Pure Heart and Empty Head”
Posted on February 22, 2010 by Matthew Splitek
Federal district court judge Shira Scheindlin — who penned five seminal
opinions in the case of Zubulake v. UBS Warburg — has weighed in again
on a litigant’s duty to preserve electronically stored information (“ESI”)
relevant to pending or reasonably foreseeable litigation. She even titled her
opinion, “Zubulake Revisited: Six Years Later.”
In Pension Committee of University of Montreal Pension Plan v. Banc of
American Securities, LLC 05-CIV-9016, 2010 WL 184312 (S.D.N.Y. Jan.
15, 2010), Judge Scheindlin sanctioned thirteen plaintiff investors for their
failure to preserve ESI. Along the way, she sketched a general framework
for determining how much to blame a litigant for its failure to preserve ESI
and what sanctions to impose when a litigant’s conduct is blameworthy.
But the opinion will be more than just a warning. If Zubulake’s reception is any guide, the analytical framework laid out in
Pension Committee will greatly influence judicial thinking about the discovery of ESI. Practitioners would be wise to be
familiar with its contents.
http://apps.americanbar.org/litigation/litigationnews/trial_skills/docs/pension-committeezubulake.pdf
ADDITIONAL
PRESERVATION ISSUES
Module 2 –
Slideshow 2
Karla Talleur
Stevenson University
OBJECTIVES
 Explain some of the issues that must be dealt with when the
duty to preserve arises
 Understand the need to assess what needs to be preserved
 Identify obligations after data to be preserved is assessed
 Understand the use of a litigation hold notice
 Explain potential uses of a preservation order
 Explain the need for establishing a chain of custody and
authentication of evidence
11/4/2017
Additional Preservation Issues
2
WHAT NEEDS TO BE DONE AFTER
THE DUT Y TO PRESERVE ARISES?
Karla Talleur
Stevenson University
 Once arises – often dif ficult to know what ESI needs to be
preserved and how best to do it
 May be issues of upgraded hardware or storage technology
where the company no longer has the software or
infrastructure to review what has to be preserved
 Temporary files can be important in disputes as digital
information systems are replete with them and they are easily
overwritten or deleted
11/4/2017
Additional Preservation Issues
3
Karla Talleur
Stevenson University
WHAT NEEDS TO BE DONE AFTER
THE DUT Y TO PRESERVE ARISES? ( CON’T)
 Easiest way to resolve confusion as to what needs to be
preserved
▪ Counsel contact adversary and try to reach agreement about
preservation obligations as early as possible to avoid later
disputes
 Sedona Conference published a decision tree to guide parties
through preservation issues
▪ Sedona Conference—nonprofit organization of attorneys and
other e-discovery professionals – prepares guidance about ediscover and other legal issues
▪ http://www.thesedonaconference.org
11/4/2017
Additional Preservation Issues
4
Karla Talleur
Stevenson University
WHAT NEEDS TO BE DONE AFTER
THE DUT Y TO PRESERVE ARISES? (CON’T)
What should an organization do after the
Duty to Preserve Arises?
▪ Convene an assessment meeting to determine potential
plaintiff’s claims and company’s defense, including
▪ In-house counsel
▪ Out-house counsel
▪ Management involved in dispute
11/4/2017
Additional Preservation Issues
5
Karla Talleur
Stevenson University
WHAT NEEDS TO BE DONE AFTER
THE DUT Y TO PRESERVE ARISES? ( CON’T)
 Once issues identified
▪ Identify all sources of potentially relevant ESI
▪ What information is relevant and discoverable?
▪ Who created information?
▪ What sources of data may contain information?
▪ Is it accessible or inaccessible?
▪ Which employees generate, receive, or access
potentially relevant information?
▪ Add to assessment team
▪ IT Department representatives
▪ Records Management representatives
▪ Refer to Document Retention Record
11/4/2017
Additional Preservation Issues
6
Karla Talleur
Stevenson University
WHAT NEEDS TO BE DONE AFTER
THE DUT Y TO PRESERVE ARISES? ( CON’T)
• Once issues identified (con’t)

Determine which data is accessible or inaccessible

Document conclusion and supporting data for following
questions

Data source needs to be converted to another form?

Is additional hardware necessary to review data?

Is a forensic computer analysis needed to retrieve
data?

Do risks exist to the integrity of data by collecting
it?

Is data only available on obsolete system and is
unavailable elsewhere?
11/4/2017
Additional Preservation Issues
7
Karla Talleur
Stevenson University
WHAT NEEDS TO BE DONE AFTER
THE DUT Y TO PRESERVE ARISES? ( CON’T)
• Once issues identified (con’t)
▪ Is same or similar ESI available from another source?
▪ Duplicates may not need to be saved
▪ Need to ensure that they are truly duplicates
▪ Balance ESI burdens and relevance of preserving
▪ See 7-point test in Zubulake v. UBS Warburg
11/4/2017
Additional Preservation Issues
8
Karla Talleur
Stevenson University
WHAT NEEDS TO BE DONE AFTER
THE DUT Y TO PRESERVE ARISES? ( CON’T)
Counsel must issue a LITIGATION HOLD notice
▪ Issued to custodians of data locations within company
▪ May need to be separate litigation hold notices and
directions to different department
▪ Should require acknowledgement by employee
11/4/2017
Additional Preservation Issues
9
Karla Talleur
Stevenson University
WHAT NEEDS TO BE DONE AFTER
THE DUT Y TO PRESERVE ARISES? ( CON’T)
 LITIGATION HOLD notice ( con’t)
▪ Structure:
▪ Identify the litigation
▪ Identify parties to the litigation
▪ As specifically as possible, identify documents to be
preserved
▪ Provide contact within company to answer questions
▪ Provide formal verification
11/4/2017
Additional Preservation Issues
10
Karla Talleur
Stevenson University
WHAT NEEDS TO BE DONE AFTER
THE DUT Y TO PRESERVE ARISES? ( CON’T)
 LITIGATION HOLD notice ( con’t)
▪ Each custodian should be interviewed
▪ Review what custodian holds
▪ How data should be preserved
▪ Needs to go beyond IT’s knowledge of custodian’s data
▪ Litigation Hold can be lifted
▪ Once litigation resolved if not relevant to any other existing
or anticipated litigation
11/4/2017
Additional Preservation Issues
11
Karla Talleur
Stevenson University
WHAT NEEDS TO BE DONE AFTER
THE DUT Y TO PRESERVE ARISES? ( CON’T)
 Seeking a Preservation Order
▪ Litigant anticipates opponent may fail to comply with
preservation obligation
▪ Party has history of discovery misconduct or spoliation
violations
▪ Party whose routine operating procedures or document
retention policy will result in likely destruction
11/4/2017
Additional Preservation Issues
12
Karla Talleur
Stevenson University
WHAT NEEDS TO BE DONE AFTER
THE DUT Y TO PRESERVE ARISES? (CON’T)
 Seeking a Preservation Order ( con’t)
• Litigant anticipates opponent may fail to comply with
preservation obligation (con’t)
▪ Inherently temporary or fleeting nature of information
▪ Columbia Picture Industries v. Bunnell
▪ RAM overwritten every 6 hours
▪ Preservation of RAM necessary to show how often users
were downloading copyrighted movies
▪ Court issued order requiring defendants to maintain
server logs that preserved the RAM
11/4/2017
Additional Preservation Issues
13
Karla Talleur
Stevenson University
WHAT NEEDS TO BE DONE AFTER
THE DUT Y TO PRESERVE ARISES? ( CON’T)
 Seeking a Preservation Order ( con’t)
▪ Preserving party may seek order
▪ Clearly define data to be preserved
▪ Limits obligations to preserve data
▪ Shield from future spoliation claims
11/4/2017
Additional Preservation Issues
14
Karla Talleur
Stevenson University
WHAT NEEDS TO BE DONE AFTER
THE DUT Y TO PRESERVE ARISES? (CON’T)
 Seeking a Preservation Order ( con’t)
▪ Information in hands of non-party custodian and at risk of
being destroyed before production
▪ In re Pacific Gateway Exchange, Inc. Securities Litigation,
2001 WL 1334747 (N.D.Cal.2001)
▪ Defendant filed Chapter 11 and was in bankruptcy proceedings
▪ Court found a “significant risk that relevant documents, both
paper and electronic, could be irretrievably lost, which could
result in prejudice to plaintiffs[,]”
11/4/2017
Additional Preservation Issues
15
Karla Talleur
Stevenson University
WHAT NEEDS TO BE DONE AFTER
THE DUT Y TO PRESERVE ARISES? (CON’T)
 Seeking a Preservation Order ( con’t)
▪ Third-parties
▪ May not receive notice of lawsuit
▪ May possess discoverable information about litigation
▪ In re Tyco International, Ltd. Securities Litigation, 2000 WL
33654141 (D.N.H.2000)
▪ Accountants, auditors, consultants
▪ Court allow preservation order but required the order to be
“appropriately tailored” that particularized types of evidence
required to be preserved
11/4/2017
Additional Preservation Issues
16
Karla Talleur
Stevenson University
WHAT NEEDS TO BE DONE AFTER
THE DUT Y TO PRESERVE ARISES? (CON’T)
 Establish a chain of custody
▪ ESI makes authentication difficult
▪ Who really maintains data?
▪ Lines of responsibility blurred
▪ ESI easily altered
▪ Lorraine v. Markel American Ins. Co., 241 F.R.D. 534 (D.Md.2007)
▪ Court refused to consider motions because parties failed
to authenticate and lay necessary foundation for emails
11/4/2017
Additional Preservation Issues
17
Karla Talleur
Stevenson University
WHAT NEEDS TO BE DONE AFTER
THE DUT Y TO PRESERVE ARISES? (CON’T)
 How to authenticate electronic evidence
▪ FRE 901 (b) list 10 examples of ways to authenticate ESI
▪ Common accepted practice — using hash marks
▪ Unique numerical identifier based on an algorithm assigned
to a file
▪ Metadata
▪ Needs to be collected in a forensic sound manner
▪ Live testimony from person who created it
▪ ESI does not easily lend itself to live testimony
11/4/2017
Additional Preservation Issues
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Karla Talleur
Stevenson University
ATTRIBUTION
 Scheindlin, Capra, The Sedona Conference, Electronic
Discover y and Digital Evidence, Cases and Materials , Thomson
Rueters, 2009
 Brecher, Childress, eDiscover y Plain & Simple, AuthorHouse,
2009
 Nelson, Olson, Simek, The Electronic Evidence and Discover y
Handbook: Forms, Checklists, and Guidelines, ABA Publishing,
2006
11/4/2017
Additional Preservation Issues
19
Preservation of Documents
What Creates the Duty to Preserve?




Common law
Specific statutes or regulations
Fact specific scenarios
“Reasonably Anticipate” litigation
Under Common Law When Does the
Duty to Preserve Arise?
• “when the party has notice that the evidence
is relevant to litigation…(and) also on occasion
in other circumstances, as for example, when
a party should have known that the evidence
may be relevant to future litigation”
– Kronvisch v. United State of America, 150 F.3rd 112,
126 (2d Cir. 1998)
Examples of Specific Statutes and
Regulation Requiring the Duty to
Preserve
– Securities Exchange Act of 1934 §21D(b)(3)(C)
(“Preservation of Evidence”)
– 29 C.F.R. §1602.14 (“Preservation of records Made
or Kept”) (part of federal regulations
implementing Title VII and the Americans with
Disabilities Act)
Fact Specific Duty to Preserve
• May be triggered by:
– Contracts between parties
– Organization’s document retention policy
– History of prior litigation involving similar
circumstances
– Industry-wide litigation has ensued even if the
organization has not yet been sued but there is a
belief that litigation against the organization may be
initiated soon
– Other instances similar to Zubulake where a belief
exists that the organization may soon be sued
“Reasonably Anticipate” Litigation
Duty to Preserve
• Reasonably Anticipate is fact determinate
• No bright lines. Consider
– Demand letter threatening litigation
– Termination of chronic complainer who “may” retaliate by
filing a complaint
– Litigation is anticipated but there are no specific plaintiffs
– Publication of article threatening litigation involving the
industry in general
• Several cases suggest
– More than just possibly becoming the subject of litigation
• See Zubulake v. UBS Warburg
What Kinds of Documents Need to be
Preserved?
• Under FRCP 34 – document includes
“writings, drawings, graphs, charts,
photographs, phone records and other
data compiliations from which
information can be obtained, translated,
if necessary, by the respondent through
detection devices into reasonably usable
form.”
One Court’s Definition of Documents
“Documents, data, and tangible things” shall be interpreted broadly to
include writings, records, files, correspondence, reports, memoranda,
calendars, diaries, minutes, electronic messages, voice mail, E-mail,
telephone message records or logs, computer and network activity logs,
hard drives, backup data, removable computer storage media such as
tapes, discs and cards, printouts, document image files, Web pages,
databases, spreadsheets, software, books, ledgers, journals, orders,
invoices, bills, vouchers, check statements, worksheets, summaries,
compilations, computations, charts, diagrams, graphic presentations,
drawings, films, charts, digital or chemical processed photographs, video,
photographic, tape or digital recordings or transcripts thereof, drafts,
jottings and notes, studies or drafts of studies or other similar material.
Information that serves to identify, locate, or link such materials, such as
inventories, file folders, indices, and metadata, is also included in the
definition.
– In re Flash Memory Antitrust Litig., No. C-07-00086, 2008 WI. 1831668, at #1 (N.D. Cal. Apr.
22, 2008)
Spoliation – What is it?
• “the destruction or significant alteration of
evidence, or the failure to preserve property
for another’s use as evidence in pending or
reasonably foreseeable litigation.”
– West v. Goodyear Tire & Rubber Co, 167 F.3d 776,
779 (2d Cir. 1999)
How Does Record Retention Policies
Fit In To Duty To Preserve?
• What is a Record Retention Policy?
– Set of official guidelines or rules governing storage and
destruction of documents or ES.
– Typically defines
– Different sets of records
– How records are to be treated generally under the policies of retention
purposes
– Provides retention schedule defining specific retention periods and
destruction for specific records
– May be govern by regulatory, legal, business, or technical
requirements
• Rambus, Inc. v. Infineon Technologies AG, 222 F.R.D.280
(E.D. Va. 2004)
• Lawfully implemented document retention programs must be
suspended or adjusted when litigation is reasonably anticipated and
runs the risk of destroying potentially relevant materials
Record Retention Policy (con’t)
• There are disasterous ORGANIZATIONAL
consequences for failing to effectively address
record management issues:
– Loss of credibility and goodwill
– Loss of critical business records and regulatory
information
– Civil lawsuits, regulatory fines and criminal
prosecutions
– Adverse litigation instructions, costs, and results
– Plummeting stock prices
Record Retention Policy (con’t)
• Every employee is a “records custodian” and any
one of them can get the entire organization into
trouble
– How will they act and what will they say when faced
with records issues?
– Simply having a policy is not enough – policy must be
continuously communicated and enforced
– Too late to implement an effective policy if in lawsuit
or being audited
• Sarbanes-Oxley Act of 2002 reflects “heightened
sensitivity” of Congress to document destruction

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