3 Facts4th opinion resolving discovery issues stemming from Zubulake’s EEOC claim filed August 16th, 2001.Main Issue:6 missing backup tapesMatthew Chapin – April, 2001.Zubulake’s SupervisorJeremy Hardisty – June, 2001.Chapin’s SupervisorAndrew Clarke & Vinay Datta – April, 2001.Zubulake’s coworkersRose Tong – June (partial), July, August, and October, 2001.Human ResourcesAugust 2001, & 2002 UBS directed to save all relevant documentsZubulake is now seeking monetary and evidentiary sanctions for the failure to preserve the missing tapesSome were not kept in accordance with regular business practiceUBS document retention policy was 3 yearsSome deleted
4 Relevant Rule Fed. 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 impeachmentFed. 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 is the primary source of evidence being soughtUBS policy for storing data requires backup tapes for 3 years.s of “key players” should have been preserved
6 Issues regarding eDiscovery Legal StandardSpoilation-Destruction or significant alteration of evidence, or the failure to preserve property for anothers use as evidence in pending or reasonably foreseeable litigationRemedied by negative inferenceDuty To PreserveTriggered when party has notice that evidence is relevant to litigation or when a party should know that evidence could be relevant to future litigationScope of PreservationNot every shred of paperWhat 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 destroyedThe records were destroyed with culpable state of mindDestroyed 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 breachedAttached at the latest August 16th, 2001.Failure to preserve 6 tapes amounted to negligenceTong tapes exceed negligenceGrossly Negligent, possibly recklessNo evidence that lost tapes would support Zubulake’s claim68 s that Zubulake said were most relevant showed no evidence that Chapin disliked Zubulake based on genderNo reason to believe the lost tapes would support her claimUBS responsible for re-deposing witnessesLimited purpose of inquiring into the issues raised by the destruction of evidence and any newly discovered s.
9 Brain TeasersIs 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?