1. Zubulake IV [Trigger Date]
Zubulake v. UBS WarBurg LLC
220 F.R.D. 212 (S.D.N.Y. 2003)

2. Date and Jurisdiction July 24, 2003
United States District Court for the Southern District of New York
Scheindlin, District Judge

3. Parties Plaintiff: Defendant: Laura Zubulake UBS Warburg LLC
Equities trader ($650,000/year) for UBS
Suing for Gender discrimination, failure to promote, and retaliation under federal, state, and city law
Defendant:
UBS Warburg LLC
Financial services company, allegedly deleted relevant correstpondence

4. Missing Tapes Missing Monthly Backup Tapes
Matthew Chapin (Zubulake’s immediate supervisor)
April 2001
Jeremy Hardisty (Chapin’s supervisor)
June 2001
Andrew Clarke and Vinay Datta (Zubulake’s coworkers)
Rose Tong (human resources)
Part of June 2001, July 2001, August 2001, and October 2001

5. Facts Certain isolate e-mails were deleted from UBS’s system
After UBS ordered employees to retain all relevant documents
UBS told technology personnel to stop recycling backup tapes

6. Facts
UBS attorneys cautioned employees to retain all documents, s, backup tapes potentially relevant to litigation
s pertaining to Zubulake (showing duty to preserve)
“UBS Attorney Client Privilege”
No attorney copied on and not of legal nature
Chapin admitted he feared litigation

7. Facts
August 2002
Backup tapes existed because of UBS’s document retention policy, requiring retention for three years
Employees instructed to maintain active electronic documents pertaining to Zubulake in separate files
UBS employees did not comply with instructions
Tapes were lost which should have been retained
No explanation on part of UBS

8. Issues Regarding eDiscovery
“Documents create a paper reality we call proof”
It is easier to destroy/delete proof, or change it when dealing with electronic documents
This does not always happen on purpose
There are consequences for destruction of relevant documents
Spoliation – “destruction of significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation”
Appropriate Sanctions

9. eDiscovery Legal Framework
DUTY – to preserve evidence
SCOPE – of what must be preserved
REMEDY – appropriate sanction
No specific rule numbers – focus on DUTY, SCOPE, and REMEDY

10. DUTY Notice evidence is relevant to litigation OR
Should have known evidence may be relevant to future litigation

11. DUTY WHEN does duty attach? Definitely when a claim is filed
Maybe even before complaint is filed
Zubulake argued that UBS should have known evidence was relevant to future litigation
2 reasons:
“UBS Attorney Client Privilege”
Chapin admitting fear of litigation
“Merely because one or two employees contemplate the possibility that a fellow employee might sue does not generally impose a firm- wide duty to preserve.”
“But in this case, it appears that almost everyone associated with Zubulake recognized the possibility that she might sue.”
“Thus, the relevant people at UBS anticipated litigation in April 2001.”
Duty attached when relevant people REASONABLY ANTICIPATED litigation.

12. SCOPE
Problem with the reasonably calculated to be relevant or requested…
Too much discretion? Do normal employees know what would or should be requested in preparation for trial?
There is so much information, how should firm know what to keep and what not to keep?
System of backup information might not make this easy
My thoughts…

13. SCOPE How much should be preserved? Everything? NO!
Not even everything when litigation is reasonably anticipated
General Rule:
Parties or anticipated parties to lawsuit must not destroy – unique, relevant evidence which might be useful to an adversary
Preserve what party knows or should reasonably know is relevant – reasonably calculated to lead to discovery of admissible evidence or reasonably likely to be requested

14. SCOPE
“Key players”
Duty extends to documents likely to be used in support of claims or defenses
Readily identified documents (“to” filed in s)
“relevant to the subject matter involved in the action”
All relevant documents in existence at time duty to preserve attaches and anything created after duty attaches must be preserved

15. SCOPE “Litigation hold” Ensures preservation of relevant documents
Does not apply to inaccessible backup tapes
EXCEPTION – “key players” documents must be preserved on all backup tapes (accessible or not)

16. REMEDY Zubulake wants Adverse Inference Instruction
Adverse inference instruction to jury usually ends litigation because it is too high of a hurdle to overcome – EXTREME SANCTION!

17. REMEDY 3 factor spoliation test for Adverse Inference Instruction
Party having control over evidence had obligation to preserve at time it was destroyed
Records were destroyed with a “culpable state of mind”
Destroyed evidence was “relevant” to party’s claim or defense such that reasonable trier of fact could find that it would support that claim or defense

18. REMEDY
Already established, UBS had duty to preserve and first prong is satisfied
After that is satisfied, any destruction = at least negligence
In this case – not everything was destroyed, only some
UBS failure to preserve all potentially relevant backup tapes was merely negligent (not gross negligence or reckless)

19. REMEDY Backup tapes of Tong – grossly negligent or maybe reckless
UBS – unquestionably on notice of duty to preserve
Tong was directly related and tapes should have been preserved
So, Zubulake satisfied second prong

20. REMEDY Two factors to show for Relevance prong:
UBS destroyed relevant evidence (as that term is ordinarily understood)
AND
Destroyed evidence would have been favorable to Zubulake

21. REMEDY
Corroboration requirement more necessary when merely negligent than when gross negligent or reckless
Merely negligent
Cannot infer conduct of spoliator that evidence would have been harmful to him
Gross negligent or Reckless
Same standard until willful spoliation
Willful spoliation
Spoliator’s mental culpability itself is evidence of the relevance of the documents which were destroyed

22. REMEDY
Judge thought there is “no reason to believe that the lost e- mails would be any more likely to support her claims.”
Low relevance of information from the lost tapes
Tong’s August 2001 tape has most likely chance of being relevant
But majority of s are preserved on September 2001 tape
So, no reason to believe peculiarly unfavorable evidence is only on the missing tapes
Zubulake cannot get adverse inference instruction because it “has not sufficiently [been] demonstrated that the lost tapes contained relevant information.”

23. Conclusion UBS had a duty to preserve the e-mails
UBS had requisite culpability
Zubulake did not satisfy the 3rd prong of the test
Failed to show relevance
No adverse inference instruction to jury
UBS pays costs of additional depositions as well as costs of re- deposing

24. Questions At what point should the duty to preserve attach?
Any time something might possibly come up in the future?
How long should this evidence be stored?
What should be the appropriate penalty?
Was there a culpable state of mind?
Was the information relevant?
Should the judge have given an adverse inference instruction to the jury?
When is an adverse inference instruction appropriate?