Kang Haggerty News
In the June 19, 2025 edition of The Legal Intelligencer, Kelly Lavelle writes, “Revisiting ‘Zubulake’ 20 Years Later.”
Introduction
It has been 20 years since Judge Shira A. Scheindlin issued the landmark Zubulake decisions, a series of rulings that profoundly reshaped e-discovery practices in federal litigation. At a time when electronically stored information (ESI) was rapidly expanding and began to overwhelm traditional discovery practices, Zubulake addressed critical issues related to preservation, production, and cost-allocation. These decisions expanded the definition of ESI, established new standards for attorney oversight, and set a precedent for holding both parties and their attorneys accountable for failing to fulfill their e-discovery obligations. This article revisits Zubulake and explores its enduring impact on e-discovery standards and practices, as well as the significant developments that have occurred since these pivotal decisions.
The ‘Zubulake’ Decisions—A Brief Overview
The Zubulake decisions refer to a series of five influential rulings between 2003 and 2004 in Zubulake v. UBS Warburg, a gender discrimination case filed by Laura Zubulake in the U.S. District Court for the Southern District of New York. Judge Scheindlin addressed, for the first time, many of the challenges posed by electronic discovery. Collectively, the Zubulake decisions established a framework for managing electronic discovery in federal litigation.
In the first three decisions, Zubulake I-III, the court laid the groundwork for how ESI should be treated in discovery. The rulings addressed issues of accessibility, relevance, and cost-shifting in the context of electronically stored information, providing a framework for assessing the burdens and responsibilities of document production. In Zubulake I, Scheindlin set forth a test to determine whether the costs of producing ESI should be shifted to the producing party or the requesting party. Zubulake II further refined this analysis, focusing on the evaluation of relevance and the burden of inaccessible data. In Zubulake III, the court applied these principles to the specific facts of the case and ordered the defendant to produce the ESI at its own expense. Zubulake I through III provided clarity on how to balance the burdens of e-discovery, especially when dealing with large volumes of data and inaccessible data.
In Zubulake IV, the court shifted its analysis to preservation duties and attorney oversight, detailing when the obligation to preserve arises and what steps lawyers must take to ensure compliance. Scheindlin held that the obligation to preserve ESI arises when litigation is reasonably anticipated, not once a lawsuit is filed. She emphasized that this duty extends not only to the parties but also to their attorneys, who are responsible for ensuring that their clients implement proper litigation holds and suspend routine data destruction practices.
In Zubulake V, the court addressed the consequences of failing to meet e-discovery obligations, making it clear that failures in preservation can result in sanctions, including adverse inference instructions. Scheindlin not only ordered an adverse inference instruction to the jury, instructing the jury that it may presume the missing evidence was adverse to the case of the defendant, but also established the duties of counsel in implementing legal holds and preserving electronic evidence in discovery. The decision put lawyers on notice that the reasonable anticipation of litigation triggering e-discovery preservation obligations often occurs well before litigation is commenced.
Together, these decisions formed the foundation for modern e-discovery practice and directly influenced the 2006 and 2015 amendments to the Federal Rules of Civil Procedure, which codified many of the principles Scheindlin had established.
Impact on E-Discovery Practices
- Establishing a Framework for Cost-Shifting in E-Discovery
The most significant impact of the Zubulake decisions was the establishment of a framework for determining when cost-shifting in e-discovery is appropriate. In Zubulake I, the court set forth the seminal seven-factor test to determine whether the costs of producing ESI should be shifted to the producing party or the requesting party. The factors include the extent to which the request is specifically tailored to discover relevant information, the availability of such information from other sources, the total cost of production relative to the amount in controversy, the cost of production compared to the resources available to each party, the relative ability of each party to control and minimize costs, the importance of the issues at stake in the litigation, and the relative benefits to the parties of obtaining the information. This test was designed to simplify the application of the Rule 26 proportionality standard in the context of electronic data and continues to serve as the legal standard in the analysis of cost allocation in e-discovery.
- Defining Preservation Duties and Consequences for Spoliation
Another significant contribution of Zubulake, specifically Zubulake IV and V, was the court’s establishment of clear standards governing the duty to preserve ESI and the consequences of failing to do so. These decisions highlighted the importance of implementing effective litigation holds, clarified the point at which the duty to preserve is triggered, and emphasized the obligation of counsel to ensure compliance with preservation duties. The rulings also provided guidance on when sanctions for spoliation are appropriate and affirmed that an adverse inference instruction may be imposed in response to willful destruction of ESI. The opinion shifted the focus of e-discovery from merely producing data to proactively safeguarding it at the initial stages of the dispute.
Developments Since ‘Zubulake’
- Technological Advancements
In the years since the Zubulake decisions, the rapid growth of cloud computing, social media, messaging applications and mobile devices has significantly expanded both the scope and complexity of ESI. These technological developments have created new challenges in the identification, preservation and review of e-discovery during litigation. However, despite the ever-evolving nature of e-discovery, the core principles established in Zubulake, such as proportionality, preservation and attorney oversight, remain essential to conducting effective and defensible discovery.
- Amendments to the Federal Rules of Civil Procedure
In response to the growing challenges of e-discovery highlighted in Zubulake, the Federal Rules of Civil Procedure were amended in 2006 and again in 2015 to formally incorporate many of the principles established in Zubulake. The 2015 amendments to Rule 26(b)(1) reinforced the concept of proportionality and the obligation of the parties to consider these factors in making discovery requests, responses, or objections. Additionally, Rule 37(e) was revised to address the preservation of ESI and to establish a uniform approach to dealing with spoliation and provides a framework for imposing sanctions, reflecting the influence of Zubulake on modern e-discovery standards.
- Emerging Trends
In keeping with the growing emphasis on proportionality and cooperation in e-discovery, courts are increasingly focused on ensuring that discovery efforts are reasonable and proportional to the needs of the case. Additionally, the use of technology-assisted review (TAR) and artificial intelligence (AI) in e-discovery continues to transform the document review process, offering new opportunities for efficiency and accuracy in document review. The tools further advance the principles established in Zubulake by enabling more targeted, cost-effective and defensible discovery practices.
Conclusion
Twenty years later, the Zubulake decisions continue to shape legal practice. They established foundational principles that remain integral to e-discovery standards and procedures. While technological advancements and amendments to the Federal Rules of Civil Procedure have introduced new challenges and opportunities, the core principles of Zubulake remain relevant and a critical component of modern e-discovery. As the legal profession continues to adapt to the evolving landscape of technology and information management, Zubulake will endure as a defining authority in e-discovery.
Kelly A. Lavelle is an associate at Kang Haggerty. She focuses on e-discovery and information management, from preservation and collection to review and production of large volumes of electronically stored information. Contact her at klavelle@kanghaggerty.com.
Reprinted with permission from the June 19, 2025 edition of “The Legal Intelligencer” © 2025 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.