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2005 Year in Review & The Top Five U.S. Electronic Discovery Developments
Michele C.S. Lange, Esq., Kroll Ontrack Legal Technologies Staff Attorney

In 2005, as a result of cases like Morgan Stanley, UBS Warburg, and Sprint as well as changes to federal, state and international rules, electronic discovery remained one of the most-discussed legal topics among U.S. lawyers, law firm staff, in-house counsel, courts, and lawmakers. Five noteworthy electronic discovery highlights in 2005 include the following developments:

1. Adverse Inference Instruction for “Thwarting” Email Discovery leads to $1.45 billion jury award.
   In Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., 2005 WL 679071 (Fla. Cir. Ct. Mar. 1, 2005), a Florida court issued an adverse inference instruction against Morgan Stanley for overwriting emails, failing to timely process hundreds of backup tapes, and failing to produce relevant emails and their attachments. Relying on that instruction, a jury awarded $1.45 billion in damages against Morgan Stanley.
2. Zubulake case culminates with jury award of over $29 million in total damages .
   A verdict was reached in the landmark U.S. e-discovery case Zubulake v. UBS Warburg originating in the Southern District of New York. The trial ended in April 2005 with the jury finding the company discriminated against former UBS employee Laura Zubulake and awarding her more than $29 million in total damages.
3. Proposed amendments to the U.S. Federal Rules of Civil Procedure move toward adoption .
   In May 2005, based on feedback from public commentary, the U.S. Advisory Committee on the Rules of Civil Procedure released revisions to the draft amendments to the Federal Rules of Civil Procedure, which address the use of electronically-stored information in legal discovery. On September 20, 2005, the U.S. Judicial Conference approved the draft Rules, which are now projected to take effect in December 2006, after being promulgated by the U.S. Supreme Court and Congress.
4. E-discovery guidelines drafted for state courts .
   In September 2005, the Conference of Chief Justices Working Group on Electronic Discovery released a draft proposal of the “Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information.”
5. When producing native documents, metadata must remain intact.
   In Williams v. Sprint/United Mgmt Co. , 2005 WL 2401626 (D.Kan. Sept. 29, 2005), a Kansas court held that “ordinary course of business” document productions must include intact metadata unless the producing party timely objects to the metadata production, the parties agree not to include metadata or the producing party requests a protective order.

In the coming year, American courts will likely continue to address the complexities associated with gathering, reviewing and producing electronically stored information. Additionally, technology tools, such as online document repositories, will continue to improve in 2006, giving lawyers more control over the document review, production, and case management processes.

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