Ride the Lightning

“EXIT HER ASAP!” DINNER WITH LAURA ZUBULAKE

August 11, 2008

We never dreamed that one of the highlights of our trip to the ABA Annual Meeting in NYC would be dinner with one of the most famous plaintiffs in the history of electronic discovery cases, Laura Zubulake. So it was with surprised pleasure that we accepted an invitation to dine with Laura and our colleague Tina Ayiotis. Laura, who is very bright (no surprise there), impeccably dressed and coiffed (it is New York, after all) and very friendly and charming, took us through many of the highs and lows of a bumpy, seven decision case. She avoided only the settlement details, which remain confidential.

Suffice to say, she no doubt received a pile of money. In 2005, she received a $29.2 million jury verdict for compensatory and punitive damages in her sex discrimination suit against UBS Warburg LLC. Rather than go through a grueling, multi-year appeal, she chose to settle, undoubtedly financially secure for life. And why throw the dice on the always uncertain appellate process? But she’s still impassioned about what happened to her and has been working hard on a book relating her ordeal, tentatively entitled “Exit Her ASAP,” a quote from one of the smoking gun e-mails revealed in the case.

I wouldn’t spill the beans on Laura’s book – hopefully it will be published within a year – but I did ask if I might write this blog posting and she graciously agreed. In particular, I was taken aback by one small but little-known fact. For years, John and I have lectured about the Zubulake case. Like most lecturers, we’ve cited the adverse inference instruction in the case (the judge told the jury that it could draw a negative inference with respect to the missing UBS Warburg e-mails) as a probable prominent factor in the jury’s decision. Not so, Laura told us. Apparently the jury was polled post-verdict, and its members indicated that the adverse inference instruction really didn’t impact their basic decision – they had already been persuaded by the evidence that the discrimination had taken place. However, the punitive damages were undoubtedly impacted by the defendant’s conduct with respect to the electronic evidence.

Clearly, Laura’s counsel had done a very persuasive job. Conversely, UBS Warburg provided a great exemplar of how not to treat an employee and how not to preserve evidence. For those of us who are ESI junkies, Laura’s book should be a terrific read.

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