course name : INTRO LEGAL STUDIES

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Case Brief Assignment:

Assignment: Brief the Zubalake case available below. You should use the documents provided under the PowerPoints/Lectures in order to help you set up thecase brief. Remember - it should be a short and succinct explanation set up in the specific formatting that includes all pertinent information. Be sure to set up the assignment in the correct format so that you do not lose points. This means you should use IRAC or another ORGANIZED form of laying out the case brief. Be sure to review the materials to help you.

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Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (2003) 92 Fair Emplprac. Cas. (BNA) 1539 e-mail was deleted and resided only on UBS's backup 220 F.R.D. 212 tapes."6 United States District Court, S.D. New York. Zubulake filed her EEOC charge on August 16, 2001; the instant action was filed on February 14, 2002. In August Laura ZUBULAKE, Plaintiff, 2001, in an oral directive, UBS ordered its employees to V. retain all relevant documents.' In August 2002, after UBS WARBURG LLC, UBS Warburg, and UBS Zubulake specifically requested e-mail stored on backup AG, Defendants. tapes, UBS's outside counsel orally instructed UBS's information technology personnel to stop recycling No. 02 Civ. 1243(SAS). backup tapes. Oct. 22, 2003 Zubulake now seeks sanctions against UBS for its failure to preserve the missing backup tapes and deleted e-mails. III. DISCUSSION It goes without saying that a party can only be sanctioned for destroying evidence if it had a duty to preserve it. If OPINION AND ORDER UBS had no such duty, then UBS cannot be faulted. I begin, then, by discussing the extent of a party's duty to SCHEINDLIN, District Judge. preserve evidence. I. BACKGROUND In brief, Laura Zubulake, an equities trader who earned A. Duty to Preserve approximately $650,000 a year with UBS, is suing UBS for gender discrimination, failure to promote, and "The obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation retaliation under federal, state, and city law. She has or when a party should have known that the evidence may repeatedly maintained that the evidence she needs to be relevant to future litigation." Identifying the prove her case exists in e-mail correspondence sent boundaries of the duty to preserve involves two related among various UBS employees and stored only on UBS's inquiries: when does the duty to preserve attach, and what computer systems evidence must be preserved?SCI-IEIINDIEKI, District Judge- I. BACKGROUND In brief, Laura Zubulake, an equities trader who earned approximately $653,000 a year with UBS,4 is suing [1133 for gender discrimination, failure to promote, and retaliation under federal, state, and city law. She has repeatedly maintained that the evidence she needs to prove her case exists in email correspondence sent among various UBS employees and stored only on UBS's computer systems. On July 24, 2003, I ordered the parties to share the cost of restoring certain UBS backup tapes that contained emails relevant to Zubulalce's claims.d In the restoration effort, the parties discovered that certain backup tapes are missing. In addition, certain isolated emails-created after [1138 supposedly began retaining all relevant emailswere deleted om UBSs system, although they appear to have been saved on the backup tapes. As I explained in Zubuiake HI, \"certain emails sent after the initial EEOC chargeand particularly relevant to Zubulakeis retaliation claimwere apparently not saved at all. For example, [an] email 'om Chapin to Joy Kim [another of Zubulake's coworkers] instructing her on how to le a complaint against Zubulalste was not saved, and it bears the subject line 'UBS client attorney priviledge [sic] only,' although no attorney is copied on the email. This potentially useful 1;: uuul 1- u u I- Luquuu. A. Duty to Preserve 1 \"The obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have lmown that the evidence may be relevant to iture litigation?\" Identifying the boundaries of the duty to preserve involves two related inquiries: when does the duty to preserve attach, and what evidence must be preserved? l. The Trigger Date In this case, the duty to preserve evidence arose, at the latest, on August 16, 200], 1when Zubulalce led her EEOC charge.H At that time, UBS's inhouse attorneys cautioned employees to retain all documents, including emails and backup tapes, that could potentially be relevant to the litigation.\" In meetings with Chapin, Clarke, Kim, Hardisty, John Holland (Chapin's supervisor), and Dominic Vail (Zubulake's former supervisor) held on August. 2931, 206-1, UBS's outside counsel reiterated the need to preserve documents.\"i But the duty to preserve may have arisen even before the EEOC complaint was led Zubulake argues that UBS \"should have known that the evidence [was] relevant to future litigation,\"L1 as early as April 2001, and thus had a duty to preserve it. She offers two pieces of evidence in support of this argument. First, certain UBS employees Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (2003) 92 Fair Emplprac. Cas. (BNA) 1539 titled e-mails pertaining to Zubulake "UBS Attorney party or is a party to a lawsuit must not destroy unique, Client Privilege" starting in April 2001, notwithstanding relevant evidence that might be useful to an adversary the fact that no attorney was copied on the e-mail and the "While a litigant is under no duty to keep or retain every *217 substance of the e-mail was not legal in nature. document in its possession ... it is under a duty to preserve Second, Chapin admitted in his deposition that he feared what it knows, or reasonably should know, is relevant in litigation from as early as April 2001: the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to Q: Did you think that Ms. Zubulake was going to sue be requested during discovery and/or is the subject of a UBS when you received these documents? pending discovery request."23 A: What dates are we talking about? Q: Late April 2001. A: Certainly it was something that was in the back of my head. 18 i. Whose Documents Must Be Retained? Merely because one or two employees contemplate the The broad contours of the duty to preserve are relatively possibility that a fellow employee might sue does not clear. That duty should certainly extend to any documents generally impose a firm-wide duty to preserve. But in this or tangible things (as defined by Rule 34(a)) made by case, it appears that almost everyone associated with *218 individuals "likely to have discoverable information Zubulake recognized the possibility that she might sue. that the disclosing party may use to support its claims or For example, an e-mail authored by Zubulake's co-worker defenses." The duty also includes documents prepared Vinnay Datta, concerning Zubulake and labeled "UBS for those individuals, to the extent those documents can attorney client priviladge [sic]," was distributed to Chapin be readily identified (e.g., from the "to" field in e-mails). (Zubulake's supervisor), Holland and Leland Tomblick The duty also extends to information that is relevant to the (Chapin's supervisor), Vail (Zubulake's former claims or defenses of any party, or which is "relevant to supervisor), and Andrew Clarke (Zubulake's co-worker) the subject matter involved in the action."26 Thus, the duty in late April 2001." That e-mail, replying to one from to preserve extends to those employees likely to have Hardisty, essentially called for Zubulake's termination: relevant information-the "key players" in the case. In this "Our biggest strength as a firm and as a desk is our ability case, all of the individuals whose backup tapes were lost to share information and relationships. Any person who (Chapin, Hardisty, Tong, Datta and Clarke) fall into this threatens this in any way should be firmly dealt with.... category."7 [Believe me that a lot of other [similar] instances have occurred earlier."20 Thus, the relevant people at UBS anticipated litigation in April 2001. The duty to preserve attached at the time that ii. What Must Be Retained? litigation was reasonably anticipated. A party or anticipated party must retain all relevantThus, the relevant people at UBS anticipated litigation in April 2001. The duty to preserve attached at the time that ii. What Must Be Retained? litigation was reasonably anticipated. A party or anticipated party must retain all relevant documents (but not multiple identical copies) in existence at the time the duty to preserve attaches, and any relevant documents created thereafter. In recognition of the fact that there are many ways to manage electronic data, 2. Scope litigants are free to choose how this task is accomplished 17 The next question is: What is the scope of the duty to For example, a litigant could choose to retain all preserve? Must a corporation, upon recognizing the threat then-existing backup tapes for the relevant personnel (if of litigation, preserve every shred of paper, every e-mail such tapes store data by individual or the contents can be or electronic document, and every backup tape? The identified in good faith and through reasonable effort), answer is clearly, "no". Such a rule would cripple large and to catalog any later-created documents in a separate corporations, like UBS, that are almost always involved in electronic file. That, along with a mirror-image of the litigation." As a general rule, then, a party need not computer system taken at the time the duty to preserve preserve all backup tapes even when it reasonably attaches (to preserve documents in the state they existed anticipates litigation.2 at that time), creates a complete set of relevant documents. Presumably there are a multitude of other 18] 19] At the same time, anyone who anticipates being a ways to achieve the same result. WESTLAW @ 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (2003) 92 Fair Emplprac. Cas. (BNA) 1539 separate files.~ Had these directives been followed, UBS would have met its preservation obligations by preserving one copy of all relevant documents *219 that existed at, iii. Summary of Preservation Obligations or were created after, the time when the duty to preserve (10] The scope of a party's preservation obligation can be attached.iii. Summary of Preservation Obligations [1"] The scope of a party's preservation obligation can be described as follows: Once a party reasonably anticipates litigation, it must suspend its routine docmnent retentiontdestruction policy and put in place a \"litigation hold\" to ensure the preservation of relevant documents. As a general rule, that litigation hold does not apply to inaccessible backup tapes (3. 3. those typically maintained solely for the purpose of disaster recovery) which may continue to be recycled on the schedule set forth in the company's policy. On the other hand, if backup tapes are accessible (is, actively used for information retrieval), then such tapes would likely be subject to the litigation hold. [11] However, it does make sense to create one exception to this general rule. If a company can identify where particular employee documents are stored on backup tapes, then the tapes storing the documents of \"key players\" to the existing or threatened litigation should be preserved if the information contained on those tapes is not otherwise available. This exception applies to at? backup tapes. iv. What Happened at UBS After August 2001? By its attorney's directive in August 2002, UBS endeavored to preserve all backup tapes that existed in August 2001 (when Zubulake led her EEOC charge) that captured data for employees identied by Zubulake in her document request, and all such monthly backup tapes generated thereafter. These backup tapes existed in August 2002 because of [1135's document retention policy, which required retention for three years *9 1n .mnnA-I 'r1'nr'4 ...__I__. _ __ .___ .'_.J.._._J._JJ._ _____ J._.'_ separate les}? Had these directives been followed, UBS word have met its preservation obligations by preserving one copy of all relevant documents *219 that existed at, or were created after, the time when the duty to preserve attached. In fact, UBS employees did not comply with these directives. Three backup tapes containing the email les of Chapin, Hardisty, Clarke and Datta created after April 2001 were lost, despite the August 2002 directive to maintain these tapes. According to the UB5 document retention policy, these three monthly backup tapes 'om April and June 2001 should have been retained for three years. The two remaining lost backup tapes were for the time period after Zubulake led her EEOC complaint (Rose Tong's tapes for August and October 2001). UBS has offered no explanation for why these tapes are missing. UBS initially argued that Tong is a Honigr Kong based UBS employee and thus her backup tapes \"are not subject to any internal retention policy?\" However, UBS subsequently informed the Court that there was a document retention policy in place in Hong Kong starting in June 200], although it only required that backup tapes be retained for one month.32 It also instructed employees \"not [to] delete any emails if they are aware that litigation is pending or likely, or during" . a discovery process "33 In any event it appears that UBS did not directly order the preservation of Tong s backup tapes until August 2002, when Zubulake made her discovery request.34 In sum, UBS had a duty to preserve the sixplus backup tapes (that is, six complete backup tapes and part of a seventh) at issue here. players" to the existing or threatened litigation should be preserved if the information contained on those tapes is document retention policy in place in Hong Kong starting not otherwise available. This exception applies to all in June 2001, although it only required that backup tapes backup tapes. be retained for one month." It also instructed employees "not [to] delete any emails if they are aware that litigation is pending or likely, or during ... a discovery process."" In any event, it appears that UBS did not directly order the preservation of Tong's backup tapes until August 2002, when Zubulake made her discovery iv. What Happened at UBS After August 2001? request. 34 By its attorney's directive in August 2002, UBS endeavored to preserve all backup tapes that existed in In sum, UBS had a duty to preserve the six-plus backup August 2001 (when Zubulake filed her EEOC charge) that tapes (that is, six complete backup tapes and part of a captured data for employees identified by Zubulake in her seventh) at issue here. document request, and all such monthly backup tapes generated thereafter. These backup tapes existed in August 2002, because of UBS's document retention policy, which required retention for three years.2 In August 2001, UBS employees were instructed to maintain active electronic documents pertaining to Zubulake in 21087136 (S.D.N.Y. May 13, 2003) ("Zubulake //" ) (addressing Zubul Footnotes 216 F.R.D. 280 (S.D.N.Y.2003) ("Zubulake ///" ) (allocating backup tape 1 Mason Cooley, City Aphorisms, Sixth Selection (1989). 4 See 6/20/03 Letter from James A. Batson, Zubulake's counsel, to the C 2 See Adam I. Cohen & David J. Lender, Electronic Discove 5 Zubulake III, 216 F.R.D. 280. forthcoming 2003) ("Unlike paper documents, electronic recognizable trace. Therefore, unique questions may arise ; form."). Individual/Server See Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309 (S.D.N. Y.: the cost allocation for producing e-mails contained on back! Matthew Chapin WESTLAW @ 2019 Thomson Reuters. No claim to original U.S. Government Works.policy, which required retention for three years.? In August 2001, UBS employees were instructed to maintain active electronic documents pertaining to Zubulake in 21087136 (S.D.N.Y. May 13, 2003) ("Zubulake /!" ) (addressing Zubul Footnotes 216 F.R.D. 280 (S.D.N.Y.2003) ("Zubulake ///" ) (allocating backup tape Mason Cooley, City Aphorisms, Sixth Selection (1989). 4 See 6/20/03 Letter from James A. Batson, Zubulake's counsel, to the C 2 See Adam I. Cohen & David J. Lender, Electronic Discove 5 Zubulake Ill, 216 F.R.D. 280. forthcoming 2003) ("Unlike paper documents, electronic recognizable trace. Therefore, unique questions may arise ; form."). Individual/Server See Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309 (S.D.N.Y. the cost allocation for producing e-mails contained on backi Matthew Chapin WESTLAW @ 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (2003) 92 Fair Emplprac.Cas. (BNA) 1539 (Zubulake's immediate 19 See 4/27/01 e-mail, Ex. A to Batson Ltr. supervisor) Jeremy Hardisty 20 Id. ( Chapin's supervisor) 21 Andrew Clarke and Cf. Concord Boat Corp. v. Brunswick Corp., No. LR-C-95-781, 1997 W Vinay Datta corporation is under a duty to preserve all e-mail potentially relevant Zubulake's that the corporation must preserve all e-mail.... Such a proposition is coworkers) 22 See, e.g., The Sedona Principles: Best Practices, Recommendations & P 6.h (Sedona Conference Working Group Series 2003) ("Absent specific Rose Tong (human to disaster recovery backup tapes...."). resources) 23 Turner, 142 F.R.D. at 72 (quoting William T. Thompson Co. v. General(Zubulake's immediate 19 See 4/27/01 e-mail, Ex. A to Batson Ltr. supervisor) Jeremy Hardisty 20 Id. (Chapin's supervisor) 21 Andrew Clarke and Cf. Concord Boat Corp. v. Brunswick Corp., No. LR-C-95-781, 1997 WL corporation is under a duty to preserve all e-mail potentially relevant Vinay Datta (Zubulake's that the corporation must preserve all e-mail.... Such a proposition is n coworkers) 22 See, e.g., The Sedona Principles: Best Practices, Recommendations & P 6.h (Sedona Conference Working Group Series 2003) ("Absent specific Rose Tong (human to disaster recovery backup tapes...."). resources) 23 Turner, 142 F.R.D. at 72 (quoting William T. Thompson Co. v. General A 6 Zubulake III, 216 F.R.D. at 287. 24 See Fed.R.Civ.P. 34(a) (defining the term "document" to "incl 7 See 3/26/03 Oral Argument Transcript at 40 (Statement of K phonorecords, and other data compilations from which information c a charge, everyone was told nothing gets deleted and we through detection devices into reasonably usable form"); see also resources files and the legal files."). "document," within the meaning of Rule 34(a), includes e-mails contai See 9/26/03 Oral Argument Transcript ("9/26/03 Tr.") at 18 25 Fed.R.Civ.P. 26(a)(1)(A). Letter from Norman Simon to the Court ("10/14/03 Ltr.") at : 9 West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Ci 26 Fed.R.Civ.P. 26(b)(1). 10 Kronisch v. United States, 150 F.3d 112, 126 (2d Cir.1998). 27 See 9/26/03 Tr. at 17 (Statement of Norman C. Simon agreeing that Hardisty, Tong, Datta and Clarke). 11 Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 436 (2d Cil 28 See Zubulake I, 217 F.R.D. at 314 ("Nightly backup tapes were kept monthly tapes for three years."). 12 See Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 72 (S. 29 v. American Broadcasting Companies, 62 F.3d 1469, 1474 (D See Zubulake III, 216 F.R.D. at 287. authority to protect their integrity and prevent abuses of 1 (holding that sanctions under the court's inherent power cal 30 See supra note 28. According to a chart prepared by UBS's attorney Cohen & Lender, supra note 2, $5 3.02[B] [1]-[2]. tapes of U.S. personnel were in fact deleted between October 2001 documents, but before they were told specifically to preserve backup 13 Fujitsu, 247 F.3d at 436 (citing Kronisch, 150 F.3d at 126). Cir.2001) ("The duty to preserve material evidence arises n 31 9/17/03 Letter from Kevin Leblang to the Court ("Leblang Ltr."). litigation when a party reasonably should know that the evid F.3d at 126). 32 See 10/14/03 Ltr. at 2-3; see also UBS Asia policy for "Retention of Be 14 See 9/26/03 Tr. at 16 (statement of Norman C. Simon agreeir 10/14/03 Ltr