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Zubulake v . UBS Warburg LLC “ Zubulake IV” 220 F.R.D. 212 (S.D.N.Y. 2003)

Zubulake v . UBS Warburg LLC “ Zubulake IV” 220 F.R.D. 212 (S.D.N.Y. 2003). Southern District of New York October 22, 2003 Monique S. Pattillo E-Discovery Fall 2010. Parties. Laura Zubulake (Plaintiff) Equities Trader, U.S. Asian Equities Sales Desk ≈ $650,000 per year

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Zubulake v . UBS Warburg LLC “ Zubulake IV” 220 F.R.D. 212 (S.D.N.Y. 2003)

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  1. Zubulakev. UBS Warburg LLC“Zubulake IV”220 F.R.D. 212 (S.D.N.Y. 2003) Southern District of New York October 22, 2003 Monique S. Pattillo E-Discovery Fall 2010

  2. Parties • Laura Zubulake (Plaintiff) • Equities Trader, U.S. Asian Equities Sales Desk • ≈ $650,000 per year • August 1999 – October 2001 • UBS (Defendant) • UBS Warburg LLC & UBS AG • Diversified global financial services company MSP - Fall 2010

  3. Background & Facts Zubulake I Examined 8-Factor Rowe Test Revised and developed new 7-Factor Test UBS responsible for all costs of accessible and usable data Restore “small sample” of inaccessible, not readily usable Zubulake III Cost-shifting Analysis (7-Factor Test) Inaccessible, not readily usable data only Apply to restoration & search costs, not review & production Parties ordered to share restoration & search costs: 75% - UBS; 25% - Zubulake Zubulake IV 6 UBS back-up tapes missing Certain emails deleted from UBS’s system Prior to and after Zubulake filed EEOC complaint Requests adverse inference instruction MSP - Fall 2010 3

  4. eDiscovery Rules • Federal Rules of Civil Procedure • §26(a) – electronically stored information • §26(b)(2) – accessible vs. inaccessible • §37 – safe harbor for ESI deleted during OCB • Court’s inherent powers MSP - Fall 2010

  5. eDiscovery Analysis • Spoliation • Duty to Preserve • Trigger Date • Scope • Whose documents must be retained? • What must be retained? • Adverse Inference Instruction • Duty to Preserve • Culpable State of Mind • Relevance ✔ ✗ ✔ ✗ MSP - Fall 2010

  6. eDiscovery Issues • Restoration & Search • Volume • Costs • Litigation hold • Inaccessible backup tapes • Company/industry retention policy • Informal nature of email, chats, texts, etc. • Company-wide preservation directive MSP - Fall 2010

  7. Conclusion • Adverse inference instruction not warranted • UBS must bear Zubulake’s costs for re-deposing certain witnesses MSP - Fall 2010

  8. Questions • What are your thoughts about the Court’s remedy? Does having UBS cover the costs of additional depositions really solve the problem? Is it fair? • What is the danger in presuming that if a litigant deletes a file, that file is detrimental to his case? How would having an adverse inference instruction, in this case, changed this area of law? MSP - Fall 2010

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