E-Discovery Sanctions: Not for Defendants Only

In the beginning, there was Zubulake.

OK, maybe that's an overstatement, but it is no overstatement to say that most civil litigators were introduced to the world of e-discovery through the series of opinions leading up to the final decision in Zubulake v. UBS Warburg, a 2004 case out of the U.S. District Court for the Southern District of New York. The other notorious case that woke up litigators to the issues involving e-discovery was Morgan Stanley & Co. v. Coleman (Parent) Holdings, a 2004 case that went before Florida's 4th District Court of Appeals.

In both matters, the defendants' gross deficiencies in preserving and producing e-discovery led the courts to find that spoliation, i.e. the destruction of evidence, had occurred. The courts provided remedies in the form of monetary sanctions, as well as adverse inference instructions to the jury that they must infer from defendants' failure to produce discovery that such discovery would have supported the plaintiffs' version of events. Those cases made familiar those and other terms now often used and generally associated with e-discovery matters.

Both cases also provided the parties with the roles we associate with e-discovery litigation: The plaintiff demands e-discovery while the defendant produces it.

Zubulake, in particular, provided the most familiar scenario in e-discovery litigation, in which the "David" plaintiff seeks smoking-gun e-mails from the "Goliath" defendant.

And the position taken by the civil defense bar confirms the reality that, in most cases, plaintiffs seek e-discovery while defendants produce it.

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Source: law.com
By: Leonard Deutchman