ZUBULAKE V Zubulake V. UBS Warburg LLC

1. U.S. District Court Southern District of New York ZUBULAKE VZubulake V. UBS Warburg LLC 229 F.R.D. 422 (S.D.N.Y. 2004)

2. PARTIES • PLAINTIFF: Laura Zubulake • Bringing sexual discrimination suit against former employer. • Requsting adverse instructions on spoliated information. • DEFENDANT: UBS Warburg, LLC • Supervisors and Co-Workers of Zubulake accused of discrimination. • Represented by In-house and Outside Counsel

3. FACTS / PROCEDURAL HISTORY April 2001 August 2001 February 2002 August 2002 Zubulake instituted suit against UBS Zubulake requested information on back-up tapes Zubulake alleges gender discrimination  Zubulake brought EEOC claim   UBS on notice to preserve UBS In-house counsel gave verbal instructions to preserve and turn over relevant material (electronic & hard copy files), Outside counsel met with “key players” & reiterated, incl. emails. In-house counsel sent reminder emails not to destroy or delete. Outside counsel instructed UBS to stop recycling back up tapes. Not all backup tapes were preserved. Zubulake I- Addressed claims that relevant emails had been deleted and existed in “inaccessible” archival media. UBS ordered to pay for restoration of back up tapes Zubulake III- Zubulake demonstrated back up tapes were missing during restoration, some emails found on tapes missing from active files. 16 tapes restored, suspicions confirmed. Zubulake IV- Zubulake sought sanctions for UBS’s failure to preserve and deletion or relevant emails. Court ordered re-depositions at UBS’s expense regarding relevancy of emails on back-up tapes. Lacking evidence that lost and deleted tapes were favorable to Zubulake. ZUBULAKE V- Issue arose over re-depositions that revealed more deleted emails and about the existence of preserved emails on UBS’s active servers which were never produced.

4. What This Decision Addresses • (1) Counsel’s obligation to ensure that relevant information is preserved by giving clear instructions to the client to preserve such information. • (2) A Client’s obligation to heed those instructions. • (3) Where fault for spoliation falls.

5. RULES AT ISSUE • Federal R.C.P. 26: DUTY TO DISCLOSE • Federal R.C.P. 30: DEPOSITIONS • Federal R.C.P 34: PRODUCING DOCUMENTS & ESI • Federal R.C.P 37: FAILURE TO DISCLOSE/COOPERATE • Sanctions to be Imposed.

6. SPOLIATION “The destruction or significant alteration of evidence, or failure to preserve property for another’s use as evidence in pending or reasonably forseeable litigation.” • Adverse Instruction Legal Standard: 3 Elements • 1. Controlling party HAD OBLIGATION TO PRESERVE it at the time • 2. Records were destroyed with a “CULPABLE STATE OF MIND” • Negligence- relevancy must be proven by party seeking sanctions • Bad Faith- sufficient to demonstrate relevancy • 3. Destroyed evidence was “RELEVANT” to the party’s claim or defense such that a reasonable trier of fact would find it would support that claim or defense • * Only willful spoliation gives rise to presumption of relevance • Counsel’s Duty to Monitor Compliance and Locate Relevant Information • Must oversee compliance and monitor party’s efforts • Become familiar with document retention policies • Communicate with “Key Players” and talk with technology personnel • * In Short: Not sufficient to notify all employees of litigation hold • MUST TAKE AFFIRMATIVE STEPS

7. STEPS COUNSEL MUST TAKE • 1. Issue litigation hold at the outset of litigation or whenever it is anticipated. • 2. Communicate directly with “key players” in litigation • Periodically remind key players • 3. Instruct all employees to produce electronic copies of their relevant active files. • Make sure all backup media required is identified and stored in a safe place to safeguard.

8. COUNSEL AND DISCOVERY FAILINGS • UBS- Clearly failed to follow counsel’s instructions • Counsel complied with existing standards • COUNSEL- Failed to oversee UBS • Didn’t adequately communicate with Tong about how data was stored and what “archive” meant. • COUNSEL: Failed to make sure relevant data was retained • 1. Neither counsel communicated litigation hold instruction to Senior human resources employee Mike Davies • 2. No one asked Kim to produce her files. • 3. Didn’t protect relevant backup tapes which may have enable Zubulake to recover some deleted emails.

9. CONCLUSION: Who’s at Fault? • UBS MAINLY AT FAULT • WHY? Once duty is communicated, party has notice and responsibility falls mainly on UBS • Counsel Partially Responsible • WHY? UBS personnel’s e-mails and copies were lost or belatedly produced as a result of counsel’s failures • FAILURE OF COMMUNICATION Falls on BOTH counsel and client • Counsel failed to communicate the litigation hold to all key players • Failed to ascertain each of their document management habits

10. REMEDY:Punishing UBS and Deterring Future Misconduct • 1. Adverse Inference- For emails after August 2001, and ones irretrievably lost. • Court concluded content would have been similar or more favorable • 2. UBS ordered to pay costs of re-deposing witnesses about late produced emails • 3. UBS ordered to pay costs of the motion.

11. QUESTIONS • How can counsel ensure relevant documents are retained when it is not feasible to speak with all key players in a litigation action, given the size of a company of scope of a lawsuit? (Hint page 88) • If the court had found the spoliation was a result of negligence, would the result have differed and how?

12. ANSWERS • 1. Run a system wide keyword search and preserve a copy of each hit. Create a broad list of search terms, run a search for a limited time frame, and segregate responsive documents. • 2. Zubulake would have had to show that the spoliated information was relevant. She most likely could have done so with UBS depositions.