SHIRA SCHEINDLIN’S ZUBALAKE
RULINGS SET A STANDARD FOR LEGAL
HOLDS ON ELECTRONIC DOCUMENTS.
how electronic information should be
identified, requested, and produced, as
well as how to deal with cost and accessibility issues.
When the Federal Rules of Civil
Procedure were first established in 1938,
they were based on paper documents.
Starting in 2003, Rosenthal and dozens
of judges, attorneys, and other legal ex-
perts contributing to the rules process
found themselves discussing and de-
signing procedural rules for electronic
evidence—a technological environment
that was evolving month-to-month.
Even in 2006, their work hadn’t yet en-
countered the explosion of smartphones
and handhelds that would exponentially
multiply the amount of ESI in circula-
tion. “The landscape was shifting as
we were talking. The technology was
changing. The speed at which [ESI] was
replacing conventional information was
remarkable,” Rosenthal recalls. “It was
much faster than we had been used to
seeing in terms of the effects of changes
in the economy or in business practice
affecting litigation. This happened very
fast. And it spread broadly and quickly.”
The goal, in short, was to devise a
set of rules that could evolve with the
times. “We had three [tasks],” she says.
“The first was to educate ourselves
very quickly—not to be technological
experts, because that would be impos-
sible. We had to understand how the
technology would make a difference
in discovery. The second was to fig-
ure out how many of [the problems of
handling ESI at the time] could be ad-
dressed by changing the rules. And the
third involved timing—the difficulty in
knowing whether we were moving too
quickly, and how we could make a rule
change that wouldn’t be creating more
problems than it would solve.”
Fellow judicial pioneer Paul Grimm
describes Rosenthal as “a phenomenon”
for her work in crafting the first set of
e-discovery rules. In 2007 Rosenthal
was honored by the Library of Con-
gress and the Law Library of Congress
for her efforts.
ANDREW PECK
U.S. MAGISTRATE JUDGE,
SOUTHERN DISTRICT OF NEW YORK
PECK IS AT THE VANGUARD of the newest
front in e-discovery—predictive coding.
This new technology uses computer
The American Lawyer | August 2013 55
