Zubulake v. UBS Warburg LLC
October 22, 2003.
∏ - Laura Zubulake
Salary $650 K/yr
∆ - UBS Warburg LLC
Global Financial Services Firm
4th opinion resolving discovery issues stemming from Zubulake’s EEOC
claim filed August 16th, 2001.
6 missing backup tapes
Matthew Chapin – April, 2001.
Jeremy Hardisty – June, 2001.
Andrew Clarke & Vinay Datta – April, 2001.
Rose Tong – June (partial), July, August, and October, 2001.
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
Fed. R. Civ. P. 26:
Duty To Disclose
Fed. R. Civ. P. 26 (a)(1)(A)(ii)
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.
UBS in-house email is the primary source
of evidence being sought
UBS policy for storing data requires backup
tapes for 3 years.
Emails of “key players” should have been
Issues regarding eDiscovery
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
Adverse Inference Jury Instruction
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
3. 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
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 emails 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 emails.
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