Zubulake Who?

Zubulake vs. UBS Warburg The Genesis of E-Discovery

Zubulake (continued)
Zubulake I, II, III, - 2003
Zubulake III, July 24, 2003
Zubulake IV, Oct. 22, 2003
Zubulake V, July 20, 2004)

Zubulake I, II
First decision in a discovery dispute, rapidly defining e-discovery standards and records management practices for business and health care
Case involved claims of sex discrimination (failure to promote and retaliation for filing charge with EEOC)
Consisted of 5 separate decisions, all with fairly significant rulings on the issue of discovery

Zubulake III
Sample evidence showed that UBS manager deleted especially relevant email messages
Court ordered complete restoration and production and shifted ¼ of the estimated $166,000 cost of searching and restoring 77 back-up tapes to plaintiff
Court denied cost-shifting of estimated $108,000 for producing email messages produced from back-up tapes

Zubulake IV
Employer failed to take adequate steps to collect and preserve evidence
Some back-up tapes were missing
Some relevant email messages created after UBS supposedly started to retain relevant email messages were not saved at all
Court ordered re-depositions of witnesses and additional discovery
Employer had a duty to preserve evidence

Zubulake V
Plaintiff presented evidence of more deleted email messages and deliberate conduct by UBS managers
Many of the email messages were indeed relevant and were the proverbial “smoking gun” evidence that supported plaintiff’s claim of retaliation
Party’s duty does not end with implementation of a litigation hold
Locate relevant information
Continue to preserve information
Product relevant non-privileged material

Quotes
A 1996 e-mail from a Wyeth-Ayerst administrator regarding the side-effects of their diet drug, Phen-Fen:
“ ...can I look forward to my waning years signing checks for fat people who are a little afraid of a silly lung problem?”

Penalties For Non-Compliance
Microsoft. Microsoft balks at the government's frequent requests for e-mails because many revealed aggressive business tactics. Microsoft eventually settles.
Morgan Stanley. Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $1.45 billion award.
UBS Warburg. In Zubulake v. UBS Warburg, U.S. District Judge Shira Scheindlin makes an adverse inference ruling against UBS, leading to a $29.3 million verdict.
Merck. Jury returns $253 million verdict against Merck & Co. Inc., when a scientist's e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems.

Data
Rules of thumb for gauging volume:
2,500 to 3,000 pages = 1 Box
1 full CD = 52,500 pages = 18 boxes
1 Gigabyte = 75,000 pages = 25 boxes
1 full DVD = 352,500 pages = 118 boxes

Common Data Collected
Paper
E-mail and attachments
Word, Excel, and Powerpoint documents
Transmissions and data stored on Blackberries and PDAs
Backup tapes
Proprietary applications, i.e. Resumix
Databases, i.e. Access
Reports from databases
Legacy applications
Internet cache files, cookies, favorites
Instant and text messages
Voicemail
Videotape
Data stored on cell phones
Data stored on CDs, DVDs

Zubulake Who?

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