Some years ago, John and I had the pleasure of having dinner with Laura Zubulake, who was the plaintiff in the seminal e-discovery case, Zubulake v. UBS Warburg. The case spawned a number of important opinions and has undoubtedly been taught more than any other in e-discovery classes and seminars throughout the country.
When John and I had dinner with Laura, knowing that she had finally settled her case rather than face an appeal, we unabashedly asked if she would reveal the amount of the settlement. She good-naturedly declined, and for legal reasons could not tell us, but she let us know that she would never have to work again. We both laughed, a bit wistfully I think!
Laura is very candid in “Zubulake's e-Discovery” – she acknowledges right in the beginning that the case consumed, obsessed and even possessed her. Her highly-detailed account spins out the story of this famous case, starting with a fascinating look at Wall Street (‘the Street’ to those who work there) much of which was unknown territory to me.
I am reluctant to spill the beans on the whole story, but most people involved in e-discovery will know that Laura wisely preserved some e-mails that did not appear in UBS Warburg’s discovery production. This led to the opening salvo in a protracted series of legal battles overseen by Judge Shira Scheindlin of the Southern District of New York, who became the first “rock star” judge in e-discovery.
The e-discovery landscape was barren indeed until what should have been a garden variety gender discrimination case became an e-discovery war zone. Suddenly, we had a spate of opinions outlining a party’s duties in e-discovery, what is and is not inaccessible (an ever-evolving standard), cost-shifting and e-discovery actions which might justify an adverse inference instruction.
It could not have been easy to take on UBS Warburg and to fight a battle which lasted for years. Laura includes many quotes that were meaningful to her in her journey, but I particularly liked this one by Winston Churchill (which guided me in my own life):
“Never give in. Never give in. Never, ever, never, never – in nothing great or small, large or petty – never give in, except to convictions of honor and good sense. Never yield to force. Never yield to the apparently overwhelming might of the enemy.”
Laura did not give in. She fought long and hard and won an amazing victory against a formidable enemy. She settled because it made good sense to do so. It pleases me that our friend won, found peace and is now living happily in New York City - and doesn't need to set an alarm clock for work!
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