A decade ago in New York, a judge named Shira Scheindlin famously issued a series of opinions in a case called Zubulake v. UBS Warberg that would change the world—or at least the United States. Since 1938, when the Federal Rules of Civil Procedure were first enacted, lawyers have had the power to compel the production of documents from their litigation adversaries. Zubulake forced lawyers and parties to realize that in this age, “documents” not only means the “paper” lawyers had produced for decades, but also all those relevant emails, PowerPoints, electronic spreadsheets, security video and any other electronically stored information spawned from the computer revolution.
It took years, but most U.S. lawyers and clients eventually came around to understand at least the basics of this burgeoning field called e-discovery. New words and concepts came into the litigation vernacular. “Litigation holds” are now required to prevent custodians from deleting potentially relevant electronically stored information. “Employees” become “custodians” if they have potentially relevant information. “Spoliation” happens if, for example, a litigation hold is not issued and a custodian deletes potentially relevant information, even if otherwise required by company retention and deletion policies. And spoliation is usually followed by words like “default” and “sanctions,” because, that is what happens if parties do not comply with their U.S. discovery obligations.
