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The 77th Academy Awards are officially in the books. Despite the Academy’s promises, this year’s Oscars were another ho-hum affair. Not even Chris Rock could breathe life into the show’s anachronistic format. Rock proved only marginally funnier than past hosts, failing to even tempt censors hovering over the seven-second delay button.

Luckily, the Oscars signal the near-end of Hollywood’s season of patting itself on the back. Joan Rivers can begin planning next year’s plastic surgery and the rest of America can return to watching reality television and re-runs of Law and Order on TNT.

Still, with all the “awarding” this past month, I feel a little left out. So, please indulge me now in an award presentation more relevant to me: the E-Discovery Oscars. Er, actually it is just the E-Discovery Oscar since my by-line seems to shrink with each article I write. Here goes….
Ahum, Ahum. I’ve just been handed the envelope. (Rrrriippp!) And the E-Discovery Oscar for Best E-Discovery Opinion of the new millennium goes to….

Not Zubulake! (Zubulake v. USB Warburg, 2003 WL 21087884 (S.D.N.Y. 2003)). Surprised? You shouldn’t be. Zube I, as I like to call it, was too big budget to take home the little golden man. Big budget opinions, like big budget movies, never win. Okay, but Titanic and Lord of the Rings are the exceptions.

Further, Zube I was watered down by its progeny: Zubulake II, Zubulake III, Zubulake IV and Zubulake V. Who’s naming these opinions, George Forman? For goodness sake, can we at least have a subtitle? Note to Judge Scheindlin: See Star Trek II: The Wrath of Khan and Die Hard with a Vengeance. Just kidding Judge Scheindlin; you are the Scorsese of e-discovery.

Zube I was a blockbuster, no doubt; a wonderfully written opinion that highlights the ultimate battleground of e-discovery: cost-shifting. It asks the eternal e-question, “to shift or not to shift.” And it answers in true jurisprudential style with a seven-factor balancing test, besting the previous cost-shifting champ’s eight-factor test by, well…one factor (See Rowe Entertainment v. The William Morris Agency, 205 F.R.D. 421 (S.D.N.Y. 2002)). What ever happened to good old three-prong tests like Lemon? I went to law school because there was no math, or physics!

The Zubes started to look a lot like the Rocky movies when Judge Scheindlin sanctioned Mr. T in Zubulake III. And by the time Zube V rolled around, all that was missing were Bridgette Nielsen and a Cold War pugilist.

Reading the Zubes was a lot like watching the birth of a litter of puppies. As soon as you’d finish reading one, here’d come another. As a matter of fact, look here, I think I see another cold wet nose. Yes, it’s Zubulake VI, 2005 WL 266766 (S.D.N.Y. Feb. 3, 2005). It looks like it has nothing to do with e-discovery. A Zube without e-discovery? That’s like a Friday the 13th movie without Jason.

I hate to poke fun at the Zubes because they have brought a lot of well-deserved attention to e-discovery. Zubulake I and Zubulake IV, in particular, tackle probably the two most important e-discovery issues: cost-shifting and backup tape retention.

But enough about the Zube sextuplets, let’s get on with the award.

And the E-Discovery Oscar goes to……. Kucala Enterprises. Ltd. v. Auto Wax Co., 2003 WL 22433095 (N.D.Ill. Oct. 27, 2003), also know as Kucala II. Yes, it is a sequel and sequels are notoriously disappointing. But The Godfather II, Road Warrior and Oceans 12 were not too shabby. Okay, maybe Oceans 12 was a bit of a stinker.

The plot of Kucala II goes something like this:

In a patent infringement case, Kucala uses a computer software program called "Evidence Eliminator" to delete electronic files the night before a scheduled discovery inspection. The magistrate judge in Kucala I recommends that Kucala’s claims be dismissed. The district judge in Kucala II refuses to dismiss the case and instead issues a warning to Kucala.

Kucala II wins the E-Discovery Oscar not because of the opinion’s jurisprudence or prose, but because of its audacious plot line and the breakthrough performance of e-discovery’s newest villain, the Evidence Eliminator. Like Renee Zellweger in Jerry Maguire, “you had me at ‘Evidence Eliminator’.”

Evidence Eliminator sounds less like the star of a legal opinion and more like the latest Lincoln SUV or a Vin Diesel character.

I wonder what the software company will call its next version of Evidence Eliminator – Admissions Annihilator or Declarations Decimator? Either way, I know what the marketing pitch should be: “Sanctions Guaranteed!”

Kucala II is the perfect mix of action and comedy, like one of Arnold’s earlier movies. Evidence Eliminator, Eraser, Terminator…what’s the difference? I can almost hear Kucala now, “Hasta la vista, smoking gun.”

Kucala II gave us Stallone-like action. As you read the opinion, you can almost hear the destruction of Word documents, the crunching of Excel Spreadsheets and, oh, the screams of those poor little PDF’s.

Equally, Kucala II made us laugh. Of course, we were laughing at Kucala, not with him (Mr. Kucala owns the self-titled company.). What was the he thinking? Why didn’t he move for sanctions against himself and save Auto Wax’ counsel the trouble? If Kucala keeps it up, he will wish he still had the $49.99 he paid for the Evidence Eliminator software so he can buy Cheetos and Mountain Dew at the prison canteen.

But most of all Kucala II taught us something about e-discovery. It taught us that spoliation was no longer just about pushing the delete key; it was about ripping out the beating heart of a JPEG and showing it to him. Kudos to Kucala for making spoliation fun again.

Kucala II was worth the price of admission and a four-gallon tub of popcorn. I admit I almost shed a tear as I read the final words of the opinion.

Wait a minute…I’ve just been handed a note. It looks like the District Court for the Northern District of Illinois has released another opinion starring the Evidence Eliminator: The Evidence Eliminator Strikes Back! (See, Direct TV, Inc. v. Borow, 2005 WL 43261 (N.D.Ill. Jan. 6, 2005)). There must be something in the water in Northern Illinois.

In closing, I’d like to thank the Academy for letting me write this article. It was an honor just to be nominated to write the article. I want to thank my parents, my wife Ashley, all the folks back at the firm (orchestra music beginning to play), my tenth grade English teacher Mr. Wallace for incessantly screaming at me to “stop with the comma splices, you Philistine” and (music playing much louder)…oh…Most of all, I want to thank you, the fans, for reading along. As Sally Field might say, “I hope you liked it, really liked it.”