School of Computer and Information Science, Edith Cowan University, Perth, Western Australia
Common law countries have been struggling with electronic data in regard to their discovery rules from the first digital document. All major common law countries, including Australia, New Zealand, Australia, United Kingdom, Canada, South Africa and the United States have recently changed their rules of discovery in an attempt to make sense of all this data and determine what, when and how data should be disclosed by parties in litigation. Case law in these countries has been defining the responsibilities of potential parties and attorneys to prepare for litigation that might happen. The case that was the catalyst of change was the 2003 United States case Zubulake v. UBS Warburg, LLC. Prior to this case judges and attorneys were trying to determine how to deal with electronic data that was becoming more voluminous. In this case, the court made a series of five pretrial orders concerning disputes over electronic discovery issues. These orders included defining accessible and inaccessible data, analyzing cost-shifting, and litigants’ duties to preserve electronic documents and consequences for failure to have an appropriate retention and deletion policy. This paper reviews the key aspects of the Zubulake case and examines the impact of the case on corporate record retention policies. This case was an important harbinger regarding how the discovery rules needed to be changed or redefined to accommodate the electronic data world.