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

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Background & FactsBackground & 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

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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

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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

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Restoration & Search› Volume› Costs

Litigation hold› Inaccessible backup tapes› Company/industry retention policy› Informal nature of email, chats, texts, etc.

Company-wide preservation directive

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Adverse inference instruction not warranted

UBS must bear Zubulake’s costs for re-deposing certain witnesses

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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?

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