After Five Years of E-Discovery Missteps: Sanctions or Safe Harbor?

In 2003 the Zubulake case became the catalyst of change in the world of e-discovery. In that case Judge Shira Scheindlin of the United States District Court for the Southern District of New York set guidelines for e-discovery that served as the basis for amending the Federal Rules of Civil Procedure (FRCP) in December 2006. The amendments incorporated a number of concepts that were described by Judge Scheindlin in the Zubulake case. ( Zubulake v. UBS Warburg LLC, 2003) Since the Zubulake case and the FRCP amendments, numerous cases have interpreted these rules changes, but one of the main points of court decisions is that of preservation of electronically stored information (ESI). A litigation hold to preserve ESI must be put into place as soon as litigation is reasonably anticipated. The failure to preserve ESI has resulted in the largest number of cases where judges have imposed sanctions, but certainly not the only one. This paper reviews the cases to answer the question – are the courts granting safe harbor protection when litigants failed to follow the rules and best practices rather than imposing sanctions? Keywords: e-discovery, electronic discovery, sanctions, safe harbor, electronically stored information, ESI, sanction