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Bar News - November 15, 2013

Book Review: Zubulake’s e-Discovery: The Untold Story of My Quest for Justice, by Laura A. Zubulake


Self-published 2012

Seldom is the legal community afforded the opportunity to hear the voice, feelings, and opinions of a paintiff, especially a paintiff whose case dramatically changed electronic discovery and set legal precedent. Zubulake’s e-Discovery is Laura Zubulake’s story of gender discrimination and retaliation claims against a multi-billion-dollar Wall Street firm. Set between 2002 and 2005, Zubulake’s book outlines the actions that caused her to file suit against her former employers and the reasoning behind her extraordinary and unusual involvement in her court case.

Zubulake’s discrimination case occurred long before the terms “meta data” and “e-discovery,” “back-up drives” and “back-up tapes” were common parlance in the legal community. Although her case began more than a decade ago, her story illustrates what is often true of the current legal community: Even if the world is recognizing the importance of e-discovery and electronic evidence, the law and lawyers are still living in a paper world.

It was Zubulake’s case – and her hard-headed determination – that forced the legal community and courts to acknowledge the importance of electronic information and evidence. Five separate Zubulake decisions from the federal court outline the burdens on defendants and counsel for defendants to both preserve and obtain electronically discoverable material once the defendants are aware (or should be aware) that a suit is about to begin. Before Zubulake, the burdens and obligations of e-discovery were not fully explained. While attorneys can learn e-discovery rules by reading the Zubulake decisions directly, it is very interesting to read the plaintiff’s opinions and understanding of those same decisions – and how those decisions directly impacted her life.

Too often lawyers get caught up in case and legal nuances and ignore the person whose life is affected by the representation. Zubulake’s book serves as a great reminder for lawyers to speak with (and listen to) their clients. For example, Zubulake’s lead counsel questioned her deeply about her feelings, her family history, and her passions so as to weave a deeply personal and believable closing argument. Without this intimate knowledge of Zubulake, the jury may not have found as it did. At the same time, Zubulake’s lawyers would not have known what evidence to look for if they did not understand Zubulake’s profession and daily dealings – information they could only obtain by speaking directly with Zubulake.

Zubulake’s book is an easy and simple read and fully explains both Wall Street and electronic terms so that the reader can follow along. Although much of the book is repetitive and written for a non-legal audience, lawyers can benefit from reading about Zubulake’s opinions on her legal team, her view of the legal system, and her systematic approach to locating and obtaining e-discovery.

Melissa S. Penson-Mesa is a staff attorney with the New Hampshire Department of Health and Human Services, Division of Child Support Services. She lives in Nashua with her husband, attorney Enrique Mesa Jr., and her cat.

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