Zubulake v. UBS Warburg LLC “Zubulake IV”

1. Zubulake v. UBS Warburg LLC“Zubulake IV” • October 22, 2003. • S.D.N.Y

2. VIPs(Parties) • ∏ - Laura Zubulake • Equities Trader • Salary $650 K/yr • ∆ - UBS Warburg LLC • Global Financial Services Firm • Wealth Management • Investment Banking • Asset Management • Business Banking

3. Facts • 4th opinion resolving discovery issues stemming from Zubulake’s EEOC claim filed August 16th, 2001. • Main Issue: • 6 missing backup tapes • Matthew Chapin – April, 2001. • Zubulake’s Supervisor • Jeremy Hardisty – June, 2001. • Chapin’s Supervisor • Andrew Clarke & Vinay Datta – April, 2001. • Zubulake’s coworkers • Rose Tong – June (partial), July, August, and October, 2001. • Human Resources • August 2001, & 2002 UBS directed to save all relevant documents • Zubulake is now seeking monetary and evidentiary sanctions for the failure to preserve the missing tapes • Some were not kept in accordance with regular business practice • UBS document retention policy was 3 years • Some deleted

4. Relevant RuleFed. R. Civ. P. 26: Duty To Disclose • Fed. R. Civ. P. 26 (a)(1)(A)(ii) • Initial Disclosures. • a copy — or a description by category and location — of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment • Fed. R. Civ. P. 26 (b)(1) • Scope in General. • Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense — including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.

5. eDiscovery Perspective • UBS in-house email is the primary source of evidence being sought • UBS policy for storing data requires backup tapes for 3 years. • Emails of “key players” should have been preserved

6. Issues regarding eDiscovery • Legal Standard • Spoilation- • Destruction or significant alteration of evidence, or the failure to preserve property for anothers use as evidence in pending or reasonably foreseeable litigation • Remedied by negative inference • Duty To Preserve • Triggered when party has notice that evidence is relevant to litigation or when a party should know that evidence could be relevant to future litigation • Scope of Preservation • Not every shred of paper • What the disclosing party knows, or reasonably should know, is relevant to the action

7. Issues Cont’d • Adverse Inference Jury Instruction • Three Prong Test • Party holding control over relevant evidence had duty to preserve at the time it was destroyed • The records were destroyed with culpable state of mind • Destroyed evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense

8. Conclusion • Negative Inference NOT applicable • Duty was breached • Attached at the latest August 16th, 2001. • Failure to preserve 6 tapes amounted to negligence • Tong tapes exceed negligence • Grossly Negligent, possibly reckless • No evidence that lost tapes would support Zubulake’s claim • 68 emails that Zubulake said were most relevant showed no evidence that Chapin disliked Zubulake based on gender • No reason to believe the lost tapes would support her claim • UBS responsible for re-deposing witnesses • Limited purpose of inquiring into the issues raised by the destruction of evidence and any newly discovered emails.

9. Brain Teasers • Is the Courts relevancy conclusion on the six tapes of information justified? • Is it fair for Zubulake to have to prove the relevance of information she has never seen?