Most Canadian records and information management (RIM) professionals have heard about the Zubulake v. UBS Warburg litigation presided over by Judge Shira Scheindlin in the United States District Court for the Southern District of New York.  But what you may not know is how a simple e-mail that would typically be considered a transitory record (or perhaps a non-record) provided a key piece of evidence for establishing the timeline critical to Ms. Zubulake’s victory.

The Dispute

The litigation arose from gender discrimination and wrongful termination suits by Laura Zubulake against her former Wall Street employer, UBS Warburg.  Ms. Zubulake claimed to have been the victim of discrimination on the basis of her sex when she was passed over for promotion in favour of a male candidate.  She also claimed to have been harassed by that candidate.  Ms. Zubulake also alleged that she was fired after she complained about the discrimination.  Formerly an institutional equities salesperson at UBS Warburg who earned approximately $650,000 in her final year of employment at UBS, Ms. Zubulake sought access to e-mails that were stored and archived by the defendants.

The Outcome

A jury awarded Ms. Zubulake more than $9M in compensatory damages and more than $20M in punitive damages (specifically $2,241,009 in back pay, $6,863,100 in front pay, and $20,169,081 in punitive damages).  Among the noteworthy aspects of the veridct was the jury’s apparent recognition that UBS’ mistreatment of Ms. Zubulake significantly hingered her prospects for future employment.  And the punitive damages award shows the jury belives UBS acted with malice or reckless disregard for Ms. Zubulake’s rights.

The case resulted in a series of groundbreaking opinions on e-discovery issues such as preserving e-mail, cost-shifting and restoring back up tapes.  Those opinions are referred to as Zubulake I and III (cost-shifting), Zubulake IV (data preservation) and Zubulake V (role of counsel in litigation).  Summaries of the opinions are available here.

The latest result is Laura Zubulake’s book, Zubulake’s e-Discovery: The Untold Story of My Quest for Justice, in which she explores her e-discovery experiences.  Those experiences arose after she decided to search for electronic evidence that she was led to believe didn’t exist.

3 Simple Words with Big Consequencees

One key piece of evidence was a reply to an e-mail message inquiring whether the recipient had received a previous e-mail.  The reply stated: “Received.  Thanks, Mike.”

That simple message illustrated UBS was aware of Ms. Zubulake’s sexual discrimination complaint to the U.S. Equal Employment Opportunity Commission (EEOC) when the decision was made to terminate her.  You can read more about this critical message in Judge Scheindlin’s order here (see pages 16-20).

From the records and information management perspective, that simple message illustrates that any recorded information – no matter how trivial or inocuous it may appear – can have far-reaching consequences.

It also illustrates, as discussed by Cary J. Calderone, Esq. in a recent post in his Data Rules and E-discovery Law blog, that the preference of records and information management professionals to limit the designation of a record to as few pre-defined items as possible can prove unworkable because of the arbitrary distinction between ‘records’ and ‘non-records’.

In the same situation, how would your organization respond to the following thought-provoking questions Mr. Calderone asks in his blog post?

• Is there an entry in any Records Retention and Deletion schedule where that three word e-mail would be classified and retained as a Record?
• Would it get automatically classified?
• Would it be left up to an employee to retain it?

Definitely food for thought for all records and information management professionals.