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

2. VIPs (Parties) ∆ - UBS Warburg LLC ∏ - 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 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 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 is the primary source of evidence being sought
UBS policy for storing data requires backup tapes for 3 years.
s 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 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?