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Zubulake v. UBS Warburg LLC Zubulake IV October 22, 2003. October 22, 2003. S.D.N.Y S.D.N.Y.

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Presentation on theme: "Zubulake v. UBS Warburg LLC Zubulake IV October 22, 2003. October 22, 2003. S.D.N.Y S.D.N.Y."— Presentation transcript:

1 Zubulake v. UBS Warburg LLC Zubulake IV October 22, October 22, S.D.N.Y S.D.N.Y

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

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

4 Relevant Rule Fed. R. Civ. P. 26: Duty To Disclose Fed. R. Civ. P. 26 (a)(1)(A)(ii) Fed. R. Civ. P. 26 (a)(1)(A)(ii) Initial Disclosures. 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 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) Fed. R. Civ. P. 26 (b)(1) Scope in General. 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. 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 is the primary source of evidence being sought UBS in-house is the primary source of evidence being sought UBS policy for storing data requires backup tapes for 3 years. UBS policy for storing data requires backup tapes for 3 years. s of key players should have been preserved s of key players should have been preserved

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

7 Issues Contd Adverse Inference Jury Instruction Adverse Inference Jury Instruction Three Prong Test Three Prong Test 1. Party holding control over relevant evidence had duty to preserve at the time it was destroyed 2. The records were destroyed with culpable state of mind 3. Destroyed evidence was relevant to the partys 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, Failure to preserve 6 tapes amounted to negligence Tong tapes exceed negligence Grossly Negligent, possibly reckless No evidence that lost tapes would support Zubulakes claim 68 s 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 s.

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?


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