Retired Judge Shira Scheindlin's Career and Future, in Her Words

Last April, Judge Shira Scheindlin retired after 22 years as a judge at U.S. District Court in the Southern District of New York. During that time, she helped shape the future of e-discovery as we know it today, particularly through her monumental Zubulake v. UBS Warburg rulings between 2003 and 2005, among others.

But just because she's retired doesn't mean she's out of opinions. Now of counsel at Stroock & Stroock & Lavan and a member of mediation and arbitration group JAMS, her experiences, her thoughts, and her predictions for the future were on full display during Relativity Fest's final day, at a panel titled “A Conversation with Hon. Shira Scheindlin USDJ (ret.).” Ariana Tadler, a partner at Milberg and principal at Meta-e Discovery, served as the other half of the conversation.

Here are some of the highlights of the chat:

On Zubulake and what it meant: “It was a routine, run-of-the-mill employment case. But I quickly saw that it would be a vehicle to talk about this cool new thing called e-discovery. … It was so early in the game, that everything I wrote, it was picked up all over the country. And I have to say, it really did spur the [Federal Rules of Civil Procedure] rules changes that happened in 2006.”

On Zubulake's plaintiff, Laura Zubulake: “She knew there were emails hidden somewhere that were saying bad things about her. So she was tenacious, and her lawyer was tenacious, and eventually she got the gold. … It taught us the lesson that if you know what to look for, and you go for it, it can make the case.”

On coming into court without knowing the 2015 amendments to the Federal Rules of Civil Procedure: “I'm never surprised by that. Lawyers never memorize the rules. … It takes years when you put in a rule change. But I like to remind people that we're talking about the Federal Rules, but most litigation occurs in state court. What happens on the state side may be completely different, and it's important to live up to that standard.”

On Sekisui Am. v. Hart and Rule 37(e)'s amendment soon after: “People forget, you only need prejudice for a lot of remedial measures to apply. Forget about intent to deprive, that only applies in a portion of remedial measures. The Rule 37(e) that eventually got promulgated was a decent compromise.”

On her time on criminal cases: “Nothing changed, the War on Drugs was a huge failure, and probably is a huge failure. The bottom line is that this country incarcerates people at a greater rate than anyone else in the world. And is it working? No, the street dealer isn't going to care about that, because it's the only way to make a living.”

On stop-and-frisk ruling: “Stop and frisk is probably the case I'm proudest of from all my years on the bench, including Zubulake. … For those of us who haven't been stopped, maybe you don't realize what it's like to be stopped, to go to the store for milk, then get hung up for 30 minutes or more in front of your friends or family. It's very humiliating. … I found this practice illegal as practiced. … What happened is that stops went from 650,000 to 20,000, with no rise in crime. That was very satisfying to me. … Had we become Murder City, that would have been bad for me. But with a 95 percent drop, there was no rise in crime. That shows it was a negative practice.”

On the personal toll of rulings: “It wasn't easy. You have to develop a very thick skin. The press was parked in front of my home. … It was really kind of awful. But as long as you're proud of your work and think what you did was right, you get through it.”

On “Women in Law” New York Times editorial: “Women have been half the class for 25 years, so there's no pipeline issue. But once they get into the firm, they're not getting the same roles in the courtroom, or the office, or elsewhere, and it's an issue. … In the courtroom, what we're seeing is women not getting speaking roles. We did a study where we had judges note who was speaking. … The private sector was not hiring women, so the clients were not stepping up and doing what they were supposed to do, or the firms were not holding up their end. … I see the clients as being a bit ahead of the big law firms. The big law firms have an institutional problem, where they pass on the opportunities to someone younger who looks like them.”

“Women have to be more aggressive; there's nothing wrong with being more aggressive. They have to ask for more responsibility, more speaking roles, to be the first chair. … If I don't do it, who's going to do it for me? And that was something that was tough to learn, even for me after leaving the bench.”

On the benefits of diversity: “We should talk about the benefits of diversity. It's not just that we ought to do something, it's that it's actually good. There have been plenty of studies that have proved this. … Including people with different points of views is the way to make better decisions. Think about juries. Post-Batson, our juries are very diverse. They're ready to see a diverse set of trial lawyers. That's what they expect to see.”

On the American Immigrant Representation Project: “When I left the bench, people said, what did you do that for? I said that I've done that for 20+ years, I wanted to see what other impact I could have. … After the November election, you could tell there was going to be a big ramp-up, deporting people, labeling them as rapists and murderers, which of course isn't true. … [In privately owned detention centers] people are held in terrible conditions without lawyers, so I tried to raise an army of volunteer lawyers that would take on detention cases and represent immigrants held in these places. And it's working. … When you have a lawyer in detention, you're 14 times more successful remaining in the country than without one.”

On JAMS and arbitration: “The ADR is really an alternative justice system. A whole lot of cases are in ADR and not in our courts. So one would hope that the access to justice is as good in the ADR system as it is in our courts, and many cases are bound by contracts to get there. … Internationally, about 4 [percent of] women are involved in arbitration. That's a pathetic figure. If you look at the statistics, most women arbitrators take employment cases. You almost see no women mediating securities cases or big commercial cases. I'm willing to take any kind of case, and I'm hearing lots of securities, commercial cases, as a special master. … Since it's an alternative justice system, I want to make sure it's a good system with good people hearing the cases, in all areas of law.”

Shira Scheindlin New York

Last April, Judge Shira Scheindlin retired after 22 years as a judge at U.S. District Court in the Southern District of New York. During that time, she helped shape the future of e-discovery as we know it today, particularly through her monumental Zubulake v. UBS Warburg rulings between 2003 and 2005, among others.

But just because she's retired doesn't mean she's out of opinions. Now of counsel at Stroock & Stroock & Lavan and a member of mediation and arbitration group JAMS, her experiences, her thoughts, and her predictions for the future were on full display during Relativity Fest's final day, at a panel titled “A Conversation with Hon. Shira Scheindlin USDJ (ret.).” Ariana Tadler, a partner at Milberg and principal at Meta-e Discovery, served as the other half of the conversation.

Here are some of the highlights of the chat:

On Zubulake and what it meant: “It was a routine, run-of-the-mill employment case. But I quickly saw that it would be a vehicle to talk about this cool new thing called e-discovery. … It was so early in the game, that everything I wrote, it was picked up all over the country. And I have to say, it really did spur the [Federal Rules of Civil Procedure] rules changes that happened in 2006.”

On Zubulake's plaintiff, Laura Zubulake: “She knew there were emails hidden somewhere that were saying bad things about her. So she was tenacious, and her lawyer was tenacious, and eventually she got the gold. … It taught us the lesson that if you know what to look for, and you go for it, it can make the case.”

On coming into court without knowing the 2015 amendments to the Federal Rules of Civil Procedure: “I'm never surprised by that. Lawyers never memorize the rules. … It takes years when you put in a rule change. But I like to remind people that we're talking about the Federal Rules, but most litigation occurs in state court. What happens on the state side may be completely different, and it's important to live up to that standard.”

On Sekisui Am. v. Hart and Rule 37(e)'s amendment soon after: “People forget, you only need prejudice for a lot of remedial measures to apply. Forget about intent to deprive, that only applies in a portion of remedial measures. The Rule 37(e) that eventually got promulgated was a decent compromise.”

On her time on criminal cases: “Nothing changed, the War on Drugs was a huge failure, and probably is a huge failure. The bottom line is that this country incarcerates people at a greater rate than anyone else in the world. And is it working? No, the street dealer isn't going to care about that, because it's the only way to make a living.”

On stop-and-frisk ruling: “Stop and frisk is probably the case I'm proudest of from all my years on the bench, including Zubulake. … For those of us who haven't been stopped, maybe you don't realize what it's like to be stopped, to go to the store for milk, then get hung up for 30 minutes or more in front of your friends or family. It's very humiliating. … I found this practice illegal as practiced. … What happened is that stops went from 650,000 to 20,000, with no rise in crime. That was very satisfying to me. … Had we become Murder City, that would have been bad for me. But with a 95 percent drop, there was no rise in crime. That shows it was a negative practice.”

On the personal toll of rulings: “It wasn't easy. You have to develop a very thick skin. The press was parked in front of my home. … It was really kind of awful. But as long as you're proud of your work and think what you did was right, you get through it.”

On “Women in Law” New York Times editorial: “Women have been half the class for 25 years, so there's no pipeline issue. But once they get into the firm, they're not getting the same roles in the courtroom, or the office, or elsewhere, and it's an issue. … In the courtroom, what we're seeing is women not getting speaking roles. We did a study where we had judges note who was speaking. … The private sector was not hiring women, so the clients were not stepping up and doing what they were supposed to do, or the firms were not holding up their end. … I see the clients as being a bit ahead of the big law firms. The big law firms have an institutional problem, where they pass on the opportunities to someone younger who looks like them.”

“Women have to be more aggressive; there's nothing wrong with being more aggressive. They have to ask for more responsibility, more speaking roles, to be the first chair. … If I don't do it, who's going to do it for me? And that was something that was tough to learn, even for me after leaving the bench.”

On the benefits of diversity: “We should talk about the benefits of diversity. It's not just that we ought to do something, it's that it's actually good. There have been plenty of studies that have proved this. … Including people with different points of views is the way to make better decisions. Think about juries. Post-Batson, our juries are very diverse. They're ready to see a diverse set of trial lawyers. That's what they expect to see.”

On the American Immigrant Representation Project: “When I left the bench, people said, what did you do that for? I said that I've done that for 20+ years, I wanted to see what other impact I could have. … After the November election, you could tell there was going to be a big ramp-up, deporting people, labeling them as rapists and murderers, which of course isn't true. … [In privately owned detention centers] people are held in terrible conditions without lawyers, so I tried to raise an army of volunteer lawyers that would take on detention cases and represent immigrants held in these places. And it's working. … When you have a lawyer in detention, you're 14 times more successful remaining in the country than without one.”

On JAMS and arbitration: “The ADR is really an alternative justice system. A whole lot of cases are in ADR and not in our courts. So one would hope that the access to justice is as good in the ADR system as it is in our courts, and many cases are bound by contracts to get there. … Internationally, about 4 [percent of] women are involved in arbitration. That's a pathetic figure. If you look at the statistics, most women arbitrators take employment cases. You almost see no women mediating securities cases or big commercial cases. I'm willing to take any kind of case, and I'm hearing lots of securities, commercial cases, as a special master. … Since it's an alternative justice system, I want to make sure it's a good system with good people hearing the cases, in all areas of law.”