By Lisa Holton
A Front-Row Seat
Five judges at the forefront of electronic discovery.
WHEN THE FEDERAL RULES OF CIVIL PROCEDURE WERE UPDATED FOR THE DIGITAL
age in 2006, federal judges had front-row seats at the revolution. They were among
the first to see the sweeping changes that electronic discovery has brought to many
areas of the law. At the same time, judges also saw how uninformed many attorneys
and their clients were about technology and how resistant they were to a series of
new rules. Today, judges are playing an expanding role in defining this multimillion-dollar business. The five pioneers profiled here have not only set the stage in procedure and case law, but have become teachers, writers, activists, and ongoing critics of
this rapidly changing industry.
SHIRA SCHEINDLIN
JUDGE, U.S. DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK
SCHEINDLIN IS CONSTANTLY in the spot-
light. She’s ruled in many high-profile
cases, including the three trials of mobster
John Gotti Jr. and New York’s “stop and
frisk” anticrime campaign. Yet she is per-
haps best known for her groundbreaking
opinions in Zubulake v. UBS Warburg (I-
V, with rulings issued between 2003 and
2005), which addressed legal holds on e-
documents. “This issue was out there for
any judge to grab because [e-discovery]
is now part of any case,” says Scheindlin.
“I just became interested in it earlier than
almost anybody else.”
Scheindlin says that Zubulake has
been a “guiding light for the country for
both the federal and the state courts. . . .
The New York state court adopted the
Zubulake standard just a year ago, so
that case has a long, long life.”
Jackson Lewis partner and early
e-discovery advocate Ralph Losey says
that Scheindlin has had a dramatic im-
pact on the industry: “Her writing has
been very powerful and a key to how
influential her opinions have been.”
Scheindlin’s involvement in the ongo-
ing e-discovery pilot project dealing
with complex litigation in the Southern
District is an example of her continuing
work to shape and improve e-discovery
processes. And she’s been vocal on the
issue of proportionality—the need to
balance the total cost of electronic document discovery with the value of the
case—from the start.
Lawyers “can’t use old techniques
and old arguments,” Scheindlin says.
“They can’t base their costs on old ways
of doing things and complain it’s so dif-
ficult and costly. They have an ethical
obligation to be up to speed.”
Scheindlin is also a busy speaker on
the emerging legal, philosophical, and
technological issues of e-discovery. “I’m
particularly interested in cross-border
discovery,” she says. “Privacy concerns
are more pronounced in other countries
than this one. And who possesses the
data in the cloud?”
LEE ROSENTHAL
JUDGE, U.S. DISTRICT COURT
FOR THE SOUTHERN DISTRICT
OF TEXAS
IF SCHEINDLIN WAS one of e-discovery’s
core strategists, Rosenthal was its archi-
tect. She was appointed to the Judicial
Conference Advisory Committee on
Federal Rules of Civil Procedure in 1996
and elevated to its chairmanship in 2003.
Her leadership led to 2006 amendments
that addressed—for the first time—how
electronically stored information (ESI)
should be handled in civil litigation. The
amendments defined ESI as any kind of
information that could be stored electronically. And they provided guidelines
for attorneys, judges, and litigants about
