May 2006

By Mary Mack

When Judge Scheindlin ruled in a landmark case and made the statement “that’s going to be the most expensive curse word you ever said,” little did she realize the prophetic nature of her words. I am not sure whether Judge Scheindlin knew how “codified” her electronic discovery rulings would become when she issued her opinions (five times, no less in Zubulake v. UBS Warburg). She probably could not have foreseen the resulting cost and risk impact on corporations faced with defending lawsuits containing (as part of the pool of potential evidence) large volumes of electronically stored information (ESI).
We are now at the brink of the “codification.” The (amended) Federal Rules of Civil Procedure (where the Zubulake standards are extremely influential) governing electronic discovery will go into effect in December 2006.

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