Zubulake's e-Discovery: The Untold Story of my Quest for Justice
"For those working to improve information technology in health care, this is a "must-read".
Kim Baldwin-Stried Reich pointed me to this book as a fellow member of the HL7 Electronic Health Records workgroup for the Records Management and Evidentiary Support Standard. This is a phenomenal story told by, sadly, a phenomenal person. I say "sadly" because the world would be a much better place if more people of learning, character, and conviction were as undeterred as Laura Zubulake.
Prior to this introduction, as a non-lawyer I was wholly ignorant of the Zubulake rulings. From the "To the Reader" pre-Preface, the subject matter's power and the manner of its telling quickly gathered me up for a marathon read.
This is a story of special interest to those currently laboring to speak to the power and inertia of the public agency and private vendor/clinical entities facilitating the Federal Government's Health Information Technology enterprise. These efforts are currently largely unencumbered by considerations of source records truth that are pro forma in industries other than health care. Electronic Health Records Systems aka EHRs are currently unregulated patient care tools, "certified" against extraordinary minimal requirements for patient care fitness and thus will produce an explosion of opportunities for the eDiscovery professional who, hopefully, will find their way to Ms. Zubulake's book too. Electronically Stored Information (ESI) and Information Governance explorers will find the most amazing range of challenges generated by these tax-payer subsidized systems with their wide-ranging fundamental legal records management defects. Ms. Zubulake's insistence on getting answers from best-source data repository information (and the presiding judge's insightful and courageous enabling rulings) will be the path future attorneys will necessarily follow into the bizarre world of EHR-mediated record variability and, unfortunately, corruptibility. The golden paving of (in most instances) undeniable and shared good intent is being laid down by a policy machine apparently inured to issues of patient records' truth and the attendant legal risks.
In this struggle, Ms. Zubulake's tale is inspiring, enlightening, and sobering. She not only successfully confronted the task of overcoming a multi-national's resistance as defendant, but also the legal profession's institutionalized economic incentives to settle for less than the client's higher interest in justice. Here again, as one more accessory thread of power and import, the story also illuminates a core question challenging our society today. That question is, "What is the current state of the social contract with Professions (and with politicians)?" These groups, with sworn duties to the benefit of the client (or to the patient or to the citizen )are principle topics here as well. How far have we gone in blithely accepting that the benefit to the Professional/incumbent is an equal or greater stakeholder in outcomes than those they are deemed to serve, required to set personal interest and gains aside? In Ms. Zubulake's case, one measure of how far we've gone is that it required her nearly complete social isolation and 24/7 dedication for multiple years to overcome the alignments of the stakeholder status quo.
Lastly, one definitely appreciates the author's insight that the current state of eDiscovery requires understanding of its "pre-Zubulake" primitive state a mere 14 years ago. This in turn helps to point us to the persistent facts of fundamental differences between records as physical artifacts vs. records as (variable, too often untested) digital constructs. Thank you Ms. Zubulake for your acts, your example, and for your book." -- Reed D. Gelzer, MD, MPH, Co-Chair HL7 Records Management and Evidentiary Support Profile Standard Workgroup. Review on Amazon.com.
"As an author of a book on e-discovery in healthcare and as a health information management professional (HIM) I was already well aware of the impact the Zubulake decisions had had on the Information Governance movement, but once, I started reading this book, I couldn't put it down-- because for the first time I was looking at this case from a whole different perspective. I had always believed that at her core, Laura Zubulake was a true health information management (HIM) professional because she understood the value of the information contained in email and how to use that information to prove her case. But I found after reading her book, I was inspired both personally and professionally. I am thankful that Laura Zubulake not only had the courage to stand up for what she believed in, but also to write her moving and compelling story. Laura Zubulake is a true heroine and pioneer in both the Information Governance movement and women's rights. Laura Zubulake stands as a true symbol of information integrity and justice. If you were a fan of Erin Brockovich you will love Zubulake's e-Discovery and hopefully, once you start reading it, you too, will have a hard time putting it down!" -- Kimberly Baldwin-Stried Reich. Review on Amazon.com
“In her well-written book, Zubulake's e-Discovery-The Untold Story Of My Quest For Justice, [Zubulake] covers [the five written opinions about electronic discovery] and more about her ups and downs during litigation from her unique perspective as the plaintiff. . . . What I enjoyed the most is that this is not a litigation story as typically portrayed in the movies or on television. This is not litigation as it is taught in law school, covering just the black letter law and exceptions to the legal rules. This is, as the commercial used to say, ‘as real as it gets.’ . . . But the book tells two stories. The first story is the one I was expecting after listening to her keynote address last year. . . . This is the story that lead to the five published opinions about the reasonable standard of behavior for dealing with electronically stored information. And, it is an interesting and important story. The pleasant surprise was that there was also a second story. In this story she writes about confronting her fears and challenges, both financial and emotional, in surviving the litigation process. It was not easy. . . . This story covers her thought process and her strategy and some of the lessons she learned. It covers how, and why she did not settle, and the risks she took along the way. This is the sort of thing it takes lawyers years and years of litigation experience to learn and appreciate, and something that I feel is never explored adequately in television or the movies. To me, this was a compelling story. I'd like to see this book become mandatory reading for every law student. It certainly is recommended reading for any judge, lawyer, executive, or legal aficionado, who wants to expand their understanding of email and electronic evidence. Think you already understand email evidence? Then, it will also help you prepare for the new legal issues that will surface as Social Media, Twitter, and the "technology-to-be-named later," become part of the litigation landscape. Lastly, if you or your company has been a plaintiff or defendant in a lawsuit, or may be some day, it provides a wonderful description of the challenges, risks, and rewards, that litigants face every day.” -- Cary J. Calderone, Data Rules and E-Discovery Law Blog Review of Zubulake's e-Discovery Data Rules and E-Discovery Law, August 14, 2012
“It's a fascinating behind-the-scenes account that provides intimate insights and event details that are not as well known. . . . Readers cannot help but identify with her and the circumstances she faced, and she provides information that goes well beyond any legal opinions or analysis. . . . A woman not easily deterred from a goal she felt most passionately about, Zubulake set out on her own "David and Goliath" crusade. From start to finish, we learn more intimate details about the how she worked side-by-side with her legal team, and how the decisions she made were fueled by her sense of duty, integrity, and her belief that she should focus on her priority -- that she had been wronged and she wanted to prove it. Throughout the book, Zubulake offers a mixture of facts with personal perspectives that provide context behind the three years of litigation. She details each opinion, discussing its significance to the overall case, and reflects back on them now that the case is resolved. . . . an entire section is devoted to the calculated, yet philosophical approach to identifying and finding information that's "not there." . . . But for readers, perhaps the most poignant lesson is how Laura Zubulake stood up for her beliefs, even when the odds seemed insurmountable -- an act of courage and a reward in and of itself.” -- Ms. Leigh Isaacs, Excerpt from Law Technology News: Book Review August 2012
"In covering e-Discovery technology for Gartner, Inc. I have had the opportunity to become very familiar with one side of the e-Discovery equation, mostly from the viewpoint of companies looking for information within their infrastructures. Laura Zubulake’s book, Zubulake’s e-Discovery, gave me another perspective. Although I was familiar with the famous Zubulake decisions, I failed to fully appreciate what the legal process – and the discovery process – looks like to the people actually involved. Zubulake’s e-Discovery showed me how advantageous it is to understand the importance of information, information technology, and information policy in the modern corporation. Laura Zubulake’s understanding of the centrality of information and the value of information enabled her to eventually prevail against a corporate opponent who had overwhelming advantages. Zubulake’s e-Discovery provides intriguing background and insights into her story. I have long been an advocate for good information management practices, and I am also very familiar with the fact that most companies are currently struggling with mountains of uncontrolled, unindexed and badly managed electronic information. The information that Laura uncovered, at huge personal and professional cost, should have been more readily available to her and to UBS, because that information was essential to her case, and essential for her to obtain justice. She knew that the information existed and she persisted in finding it. She understood its value, knew its purpose and applied that to her case and her circumstances. Eight years after the first Zubulake decision, corporations still have not learned the lessons of the Zubulake case. Bad information management practices, over retention of information, lack of policy and training around the importance of information and the obligations employees and officers of companies alike have when it comes to information: all of these are still massive problems. I ask myself and our clients this question every day: What will it take for managers, legal professionals and courts to realize how vital it is that we manage information better, so that their businesses can function more efficiently and fairly? Zubulake’s e-Discovery makes the case once again: information is the lifeblood of the corporation and the advantage lies with those who truly understand what that means." -- Ms. Debra Logan, Vice President and Distinguished Analyst, Gartner, Inc
In Review: Zubulake Delivers Suspense, Inspiration
“Zubulake’s first-person account defies a single description. It’s a legal yarn that remains suspenseful even though most readers know the out come . . . . It’s also an inspirational story of how perseverance, self-reliance, and the desire for justice can prevail against the steepest odds. It’s a call to action for corporate counsel and executives to whip their information governance into shape. And, on its purest level, it’s a tale of David v. Goliath. . . . . What makes the book satisfying is Zubulake’s account of the roles she played so creatively while battling a corporate behemoth.” -- Jeff Whited Information Management March/April 2013 p. 46 ARMA International www.arma.org
“I have worked in eDiscovery for 10 years and the Zubulake decisions are seminal in my practice. Ms. Zubulake's story about how and why she undertook the strategy to evoke these decisions, and her reaction to them, is one of the most fascinating stories I've ever read. But, more importantly, this story is astoundingly enlightening about how a plaintiff finds the bravery and courage to take on a case of this magnitude. Every litigator, regardless of whether they are involved in eDiscovery or not, should read this story.” --
Bennett B. Borden, Chair, Information Governance and eDiscovery at Drinker Biddle & Reath LLP. Review on Amazon.com
“This book is recommended reading for any attorney, first and foremost, because it offers rare insight into a plaintiff’s strategy, hopes and fears in litigation from the case’s earliest stages through trial. . . . The book is also worth reading because it is a fascinating story, well told by Ms. Zubulake.” -- W. Russell Taber III, used with permission of the Tennessee Bar Journal, a publication of the Tennessee Bar Association. July 2013
Zubulake Revisited “Zubulake’s e-Discovery provides a fascinating behind-the- scenes look at a game-changing case. It should be on every law school reading list, and should be read by every trial lawyer.” -- Patrick W. Michael Bar Briefs Louisville Bar Association July 2013
“A new book, by the plaintiff in the most famous eDiscovery case ever, provides the “backstory” that goes beyond the precedent-setting opinions of the case, detailing her experiences through the events leading up to the case, as well as over three years of litigation. . . . For those familiar with the opinions, the book provides the “backstory” that puts the opinions into perspective; for those not familiar with them, it’s a comprehensive account of an individual who fought for her rights against a large corporation and won. Everybody loves a good ‘David versus Goliath story’, right?” -- Doug Austin, eDiscovery Daily Blog
“Legal strategy and the underlying and outlying circumstances and emotional drivers that go to strategic positioning are the elements we are not privy to in reviewing case law. As a 20-plus year professional working in the field of litigation, those are exactly the elements I am curious about when I study opinions. In her book, “Zubulake’s e-Discovery, The Untold Story of my Quest for Justice,” Laura Zubulake provides those answers. . . . I believe Zubulake’s e-Discovery is a must-read for law students. The author does a good job explaining the important historical events and challenges leading to the Zubulake I through Zubulake V opinions.” -- Mikki Tomlinson, eDiscovery Journal
“Written from the bird’s eye view of a lay-plaintiff, it reads like a “whodunit,” presenting an unfolding picture of the e-discovery process from the plaintiff’s chair. . . . For attorneys handling e-discovery, the book is illuminating: ‘E-discovery requires thinking beyond convention.’” -- Michael D. Berman, Mediation of E-Discovery Disputes
I teach electronic discovery at the University of Kansas, and I assign Laura Zubulake's book as required reading. My students have reported to me that reading the book is one of the best parts about the class. The book is very well written, includes accurate legal terminology and descriptions, and provides an important and unique perspective from an actual client/litigant. Laura Zubulake's take on her case - and the foresight she had with respect to electronic evidence back then, provides my students with a more complete picture of how a case travels through the various stages of litigation. Of course, the book is an excellent choice for supplemental reading in an electronic discovery class, but I also believe law students in any type of litigation-oriented class would benefit from reading Ms. Zubulake’s book. In truth, I believe lawyers, law students, and non-lawyers will enjoy (and get much from) this book. An excellent read!
Professor, University of Kansas School of Law
I taught an Electronic Discovery course in the Fall and used Zubulake's e-Discovery as a required textbook. Students loved the book – and many highlighted it as one of the best aspects of the course. I will be teaching the course again and will continue to use it as one of my required textbooks. Laura's story made electronic discovery come alive for students – and helped them understand the foundation and rationale for the FRCP and how the rules impact a case.
Sara Anne Hook, M.B.A. (Finance), J.D.
Professor of Informatics and Program Director, Informatics Core
Professor, University College, Indiana University/Purdue University, Indianapolis (IUPUI)
Adjunct Professor of Law, Center for Intellectual Property Law and Innovation
I created and teach a state-of-the-art eDiscovery course at Seton Hall University School of Law. A focus of the course includes teaching students the legal and practical aspects of using electronically stored documents to build a legal case. Zubulake’s e-Discovery is required reading for my class because I find that it provides my students with a valuable, often lacking, perspective about the client. Students often comment to me on how important they felt the book was to their learning which is why I continue to include it as part of my teaching.
Adjunct Professor – Electronic Discovery
Seton Hall University School of Law
(Full disclosure Mr. Pinguelo was involved with the editing of the book.)
The following are comments about Zubulake’s e-Discovery from the students of Lisa J. Berry-Tayman Esq. CIPP/US E-Discovery 2013 course at Indiana University/Purdue University, Indianapolis (IUPUI).
I absolutely love the book; it is not only informative but very compelling.
Loved it! Best class read I had this year. Keep it.
I think that the Zubulake book is an exciting, real world learning tool. It should definitely be kept for next year's class because it is very easy to read and keeps you wanting more, much unlike a traditional text book. Thank you so much for adding such a great book to the class, and thanks to Laura for all her hard work that lead to new, necessary legal precedents.
I thought this book was incredible. It was an excellent exposure to the real world of litigation. As a woman, this book was inspiring. It related to me on a whole level I wouldn't have expected. It was also an easy read. You could see her experience through her eyes. I felt like she was sitting right next to me telling me the story. I most definitely approve this book and I advise you to continue to use it in later classes.
Laura's will and determination to fight on and not fold under the pressure she was under for several years was inspiring. I don't know how many individuals could have withstood the stress, financial burden and the uncertainty of what the future would hold after a lifetime of hard work, but Laura did it it was a landmark case for ediscovery.
It was much easier to read than a normal, boring text book. The book allowed us to see more clearly how she coordinated the different issues and points so that it could be presented as an argument for her case.
Absolutely. The story revealed in Zubulake's e-Discovery provides the reader with insight lacking in the average textbook. Laura Zubulake's story of her hopes and fears concerning the case are chronicled from the initial discovery issues through the end of litigation, giving readers her legal strategy and personal reactions to various elements of the case. Additionally, the outcome of her case led to multiple legal opinions and revolutionized the way that ESI was handled both by corporations and third party law firms alike. Multiple sources view the book as a must read for any attorney and therefore, without doubt the book should be read not only in relation to legal studies, but in corporate practice and technology.