1594 544MZUB1 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 2 3 LAURA ZUBULAKE, 3 4 Plaintiff, 4 5 v. 02 Civ. 1243 (SAS) 5 6 UBS WARBURG, LLC; UBS WARBURG; 6 and UBS AG, 7 7 Defendants. 8 8 ------------------------------x 9 New York, N.Y. 9 April 4, 2005 10 9:40 a.m. 10 11 Before: 11 12 HON. SHIRA A. SCHEINDLIN, 12 13 District Judge 13 14 APPEARANCES 14 15 LIDDLE & ROBINSON 15 Attorneys for Plaintiff 16 BY: JAMES R. HUBBARD 16 JAMES A. BATSON 17 CHRISTINE A. PALMIERI 17 ALYSON C. BRUNS 18 18 PROSKAUER ROSE 19 Attorneys for Defendants 19 BY: BETTINA B. PLEVAN 20 LLOYD B. CHINN 20 BRIANNA C. KENNY 21 LISA A. SWEBERG 21 22 22 23 ALSO PRESENT: REBECCA WHITE 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1595 544MZUB1 1 (Trial resumed) 2 (In open court; jury not present) 3 THE COURT: Just before you bring in the jury, I want 4 to make sure we all know what we are doing in what order. 5 The first thing when the jury comes in, I am going to 6 read them the one paragraph that you got over the weekend by 7 e-mail which starts with last Thursday. That begins the 8 proceedings. Then we go to summation, defense, then plaintiff. 9 When all that's done, we go to the charge. If there is no more 10 to office say about the charge, we are going to photocopy it. 11 MR. BATSON: Did you want me to hand up -- we did 12 reach agreement on a stipulation as well as on the definition 13 of backup tapes. 14 THE COURT: Very good. That comes before my paragraph 15 or maybe not. It doesn't matter, but it has to come before 16 summations. That will work perfectly with the last Thursday 17 paragraph. You want me to read the stipulation after I read 18 the definition of backup tapes? 19 MR. BATSON: I don't think it is necessary, your 20 Honor. It is an exhibit so we can refer to those documents as 21 ones -- 22 THE COURT: I am going to go ahead and read it. 23 MR. HUBBARD: We will read it to the jury, your Honor, 24 in argument. 25 THE COURT: No, you won't do that, but you can argue SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1596 544MZUB1 1 what's in evidence. I am going to put it in evidence and that 2 the parties have stipulated to it. 3 It works perfectly. I'll read the Thursday paragraph, 4 the definition of backup tape, a stipulation and then it is all 5 in evidence and we can go into summation. 6 What exhibit number should we call the stipulation? 7 What would be the next J? 8 MR. BATSON: J400. 9 THE COURT: J400 would be fine. 10 One last thing to tell you before I bring the jury 11 in -- I should have given you a heads-up on this -- all 12 exhibits go into the jury room, so you have to organize 13 exhibits and make sure each side agrees that the other side, 14 they have done the same. 15 MR. BATSON: Yes, your Honor. 16 THE COURT: Have you looked at each other's and made 17 sure there was no mistakes? 18 MR. CHINN: We traded lists. 19 THE COURT: Everybody is satisfied. I am going to 20 send that right in. I think we have got our work done. 21 (Jury present) 22 THE COURT: I know you're all here despite the washout 23 weekend that we had. 24 There are a couple of preliminary things that I have 25 to go over this morning and then, as I told you on Thursday, we SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1597 544MZUB1 1 will have summations and charge. My clerk has given you menus 2 in the hope that you can get together and keep it shorter if we 3 have not finished everything by lunch. 4 Last Thursday, which was our last day that we sat 5 together, in the course of asking the defense counsel to 6 complete his examination of Ms. Kim I asked him if there was 7 anything else that he would like to ask her that's relevant to 8 the case. That comment was made offhand in an effort to 9 complete the evidence and did not in any way mean to imply that 10 Ms. Kim's testimony prior to that time was irrelevant. 11 As I told you at the outset of the trial, and as I 12 will tell you again during my charge later today, you and you 13 alone decide the fact questions presented by this case. I do 14 not. One of the experiences described by Ms. Kim or by any 15 witness are relevant to plaintiff's claim is for you to decide, 16 not for me to decide. You must weigh the testimony of each 17 witness who testified at the trial and decide if the testimony 18 was credible and what weight, if any, to give to the testimony. 19 I do, however, instruct you that neither Ms. Kim nor Ms. Yeah 20 held a position comparable to that held by Ms. Zubulake in 2000 21 and 2001. 22 Now, you also heard me and the attorneys use the term 23 backup tape in connection with e-mails. I wanted to provide 24 you with a definition of that term for your use in this case. 25 A backup tape, as it applied to UBS's e-mail system in 2001, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1598 544MZUB1 1 contains what is essentially a snapshot of all of the e-mails 2 that exist on a person's computer system at the moment that the 3 snapshot is taken. So it would not contain any e-mails that 4 were, for whatever reason, no longer present on the person's 5 computer system. 6 Now, the parties here have reach a stipulation. A 7 stipulation is an agreement between both sides, and it binds 8 both sides. And they have reached a stipulation that the 9 following exhibits, which I am going to read off to you, 10 contain e-mails that were only produced after they were 11 restored from backup tapes. Some of you, I know, have taken 12 detailed notes. 13 Here are those exhibits: P212; J2; J82; J83, but only 14 the top e-mail on that one, which was dated September 2, 2001; 15 J84; J94; J97; J102; J108; and D204. And the parties have put 16 that stipulation in writing and they have both signed it. And 17 the stipulation itself is an exhibit, so you don't have to have 18 written down all of those numbers. The exhibit itself is J400. 19 So when all the exhibits go into the jury room you will have 20 that stipulation, too, with all those numbers. 21 With that preliminary let me make sure. Plaintiff 22 rests, Mr. Hubbard? 23 MR. HUBBARD: Yes, your Honor, plaintiff rests. 24 THE COURT: Ms. Plevan. 25 MS. PLEVAN: Yes, your Honor. But defense renews the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1599 544MZUB1 1 Rule 50 motion for the record. 2 THE COURT: Fair enough. And I reserve and will rule 3 on that later today. 4 In any event, the parties have now rested and are 5 prepared to give their summations, and we begin with the 6 defense because the plaintiff has the burden of proof. So the 7 plaintiff speaks last. 8 Ms. Plevan, do you want help changing the place of the 9 podium. 10 MS. PLEVAN: No, your Honor. That's fine. 11 Good morning, ladies and gentlemen. I want to thank 12 you on behalf of UBS for all your attention during the last two 13 weeks. You have been very attentive and I know have listened 14 to the testimony and seen the exhibits and we appreciate very 15 much your attention. 16 It is now my job to tell you what we, UBS, what we 17 think the evidence has shown in the case. And as the judge 18 just indicated, Mr. Hubbard will come after me. I am going to 19 try to anticipate as much as I can what he is going to say, but 20 I may not succeed in anticipating everything. Of course, in 21 the time we have allotted, we can't possibly recall all of the 22 testimony and evidence. This is just a summary. 23 What I wanted to start with is in my closing is what I 24 started with at beginning, what are some of the key points that 25 we said we would prove, and I will tell you now how we did SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1600 544MZUB1 Summation - Ms. Plevan 1 prove them. And the first thing I told you in the opening was 2 that we would show you through the testimony and through the 3 documents that Ms. Zubulake had performance problems, three 4 performance problems in particular, although two of them quite 5 related to each other and that had to do with teamwork. 6 We said we would show you that Ms. Zubulake was not a 7 team player, and you saw in the course of the trial many 8 examples -- and I will detail them in a minute -- many examples 9 of her issues with respect to teamwork, and you heard also an 10 explanation of how important teamwork was to the functioning of 11 this Asian equities group, and how it related to client 12 service, which was one of the other areas we said we would 13 identify. And the third we said we would tell you about is 14 insubordination. And we showed you lots of evidence of 15 insubordination as well. 16 I also said at the outset that we would show that 17 Ms. Zubulake resented Mr. Chapin. She thought this was a job 18 she should have obtained, and we proved that to you as well. 19 Indeed, Ms. Zubulake acknowledged herself from the witness 20 stand that she thought she should have been considered for the 21 job. She thought that it was unfair that she hadn't been 22 considered, and she was angry about it. She said that. 23 We also said we would show you that there were six 24 people, at least, six different people involved in the decision 25 to terminate Ms. Zubulake and that this was not Mr. Chapin's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1601 544MZUB1 Summation - Ms. Plevan 1 decision. It was a group decision in which his two managers 2 were very much involved, as well as three human resources 3 people. 4 We also said we would show you that UBS did a great 5 deal to try to resolve this performance issue, as well as the 6 related issue of the relationship between Mr. Chapin and 7 Ms. Zubulake. And we showed you that as well. Again, I'll 8 detail that for you in a minute. And we also said we would 9 show you that Ms. Zubulake did not take responsibility for the 10 issues that were raised. And this surfaced in a number of 11 different ways. You will see it when you read it. And I'll 12 show it to you or read from it. In her year 2000 performance 13 review there are very important examples of her response to the 14 criticism she got the year before from Mr. Vail. And he's 15 trying to coach her on what she needs to do, and her responses, 16 which appear in two places in that document, show that she 17 doesn't see it as something she needs to address. 18 You will also see this failure to take responsibility 19 in the e-mails she wrote when she was criticized for not 20 handling the Singapore Malaysia research analysts very well, 21 and this happened twice. It happened in December of 2000. She 22 was criticized for this. And her response is, she just can't 23 understand why anybody is criticizing her. And she explains 24 what they need to do to solve the problem. And she does 25 virtually the same thing in writing in July of 2001, when she SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1602 544MZUB1 Summation - Ms. Plevan 1 is criticized again for the very same thing. 2 And you will also see this tendency on her part not to 3 take responsibility in the July 2001 memo she wrote to Mr. 4 Holland when he asked her to please explain from her 5 perspective her relationship with Mr. Chapin and what the 6 issues were. It was all about what Mr. Chapin's problems were, 7 what he needed to do to change, not a word about herself. 8 Then there is this tendency, and you will see it in 9 the documents, for her to express surprise about criticism. 10 She is always surprised by the criticism. And you know that 11 she is surprised because she hasn't ever absorbed the fact that 12 there is something that she needs to do to address her own 13 performance. That's why she is surprised. 14 Let's turn next to the issue of discrimination. This 15 is one of two claims that Ms. Zubulake has asserted a claim of 16 gender discrimination. And a bit later, as the judge 17 indicated, she is going to give you a charge. And the charge 18 is going to tell you the following: The mere fact that 19 plaintiff was a woman and terminated is not sufficient in and 20 of itself to establish a claim under the law, nor is 21 plaintiff's own subjective belief that she was discriminated 22 against sufficient to meet her burden of proof of sex 23 discrimination. 24 She has the burden of proof. The burden of proving 25 intentional discrimination remains with the plaintiff and it is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1603 544MZUB1 Summation - Ms. Plevan 1 up to her to prove that her sex was one of the reasons for 2 UBS's decision to terminate her employment. If plaintiff 3 fails -- that's Ms. Zubulake -- fails to show that sex was a 4 determinative factor, determinative factor for her termination, 5 you must find in favor of UBS. And we submit that you will not 6 from this evidence be able to conclude that her gender was a 7 determinative factor. 8 What did Ms. Zubulake present to you? I would 9 characterize the evidence about gender as sort of sound bites 10 here and there, little comments. She referenced the word 11 chicks being used once to her by Mr. Chapin. She also said 12 that he once used the term yellow fever. He explained the 13 context in which he recalled using that by quoting his former 14 boss when they were having drinks somewhere after work. 15 Then she presented the testimony of Peggy Yeh, a 16 disgruntled former employee of UBS who recounted, 17 interestingly, some incidents she claimed occurred but which 18 for some reason she couldn't recall ever mentioning when she 19 was at UBS to human resources or at her exit interview. And we 20 know Ms. Yeh is disgruntled because she acknowledged on the 21 stand that she left because she wasn't being promoted by 22 Mr. Chapin. She acknowledged he was promoting other women in 23 the group, but he didn't promote her, and he was criticizing 24 her performance. That's the essence of Ms. Yeh's testimony. 25 But even if you credit everything that Ms. Yeh said, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1604 544MZUB1 Summation - Ms. Plevan 1 remember that she was talking about something that happened to 2 her. She was not talking about anything with one or two 3 exceptions, anything that was either said about or said to 4 Ms. Zubulake. 5 What else did Ms. Zubulake present to you? She 6 presented the issue of her seating. And this was the 7 proverbial mountain out of a molehill. Ms. Zubulake learns 8 that there has been a seating arrangement before the move. She 9 is told by one of the administrative assistants that she can 10 look at the plan. And as you know from Ms. Tong's testimony, 11 the plan she looked at was not the original plan. The original 12 plan that Mr. Chapin had approved had the entire desk together. 13 That is all the salespeople together. 14 And somewhere between the first plan and the second 15 plan, the Asian equities sales group had to give up two desks 16 to make room for another group. And so they got pushed down 17 and an aisle was going to be in between. And that was the plan 18 that Ms. Zubulake looked at. And when she looked at it she was 19 upset, but she didn't go speak to Mr. Chapin. He was out of 20 town. She didn't go call him. She didn't e-mail him. She 21 went right to Mr. Hardisty. And in an example of the type of 22 way that she avoided talking to Mr. Chapin, she went right to 23 Mr. Hardisty, and she got him very upset. And he, for whatever 24 reason, he didn't check with Mr. Chapin either. And so he gets 25 upset about this change. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1605 544MZUB1 Summation - Ms. Plevan 1 Well, the change was corrected immediately. And as 2 the evidence showed, it was an accident. It wasn't something 3 done on purpose. And Ms. Zubulake herself acknowledged that 4 Mr. Chapin didn't even seem to understand what had happened, 5 that it couldn't have been something he was trying to do to 6 punish her or to provoke her. 7 And you also saw that it was, fixed, people paid 8 attention to it. It was fixed within a few weeks, although it 9 cost money to do that. Yet, Ms. Zubulake, this issue of the 10 desk lived on. She couldn't just accept it and have it be 11 resolved. She raised it again when she sat with Mr. Varsano 12 for hours, you will recall in May. This was still an issue in 13 her mind. 14 Then in July, when she is writing that memo to Mr. 15 Holland about the problems that she is having with Mr. Chapin, 16 she is still dwelling on this seating issue that had long since 17 been resolved. 18 Now, what are some of the other issues that she 19 raised? I'll characterize one group of them as being a social 20 event; again, isolated incidents where Ms. Zubulake really 21 didn't have knowledge about what had happened. She knew there 22 were baseball games, there was a golf outing, there was a 23 dinner in Boston. And she thought she should have been 24 included in all of these. Well, you heard from all the 25 witnesses that part of the responsibility of a salesperson is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1606 544MZUB1 Summation - Ms. Plevan 1 to entertain clients. They all did it. They did it all the 2 time. And Ms. Zubulake did it all the time. And they didn't 3 always do it all together. Sometimes when you go for dinner, 4 it only made sense, or lunch, to have three or four people go 5 instead of 10 or 11. 6 And with respect to the one specific, she mentioned 7 the dinner with Steve Dexter. You heard Mr. Chapin explain 8 this was not a dinner he organized. He didn't invite the 9 people. He merely suggested that the new representative in 10 Boston, new salesperson, Mr. Hrabchak, be included in the 11 dinner so he could meet Mr. Dexter, who was from the Putnam 12 fund group that was based in Boston. That's the reason 13 Mr. Hrabchak went. Mr. Chapin didn't even go to this dinner. 14 The golf outing he explained to you he organized for 15 the purpose of introducing some new people to Marvin & Palmer, 16 who was the client, and he said he organized that specifically 17 to bring in some new people. It was not to spend time with 18 people that he already knew. So that's why he invited the 19 people he did. 20 And with respect to baseball games, he told you that 21 there were some people included and just a few people from the 22 desk, not the entire desk. So this was not a matter of 23 excluding Ms. Zubulake had the same right and privilege, and 24 you will see in the documents she did entertainment of clients 25 herself. She didn't claim that anybody told her she couldn't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1607 544MZUB1 Summation - Ms. Plevan 1 take people out or anything of the sort. 2 And the last sort of entertainment-related event, 3 another one of these little sound bites is Mr. Hardisty 4 inviting her to go to a bottomless bar, I think she said. You 5 heard him deny that. And certainly this was not an issue of 6 being excluded because he asked her to go, according to her. 7 What else did she complain about? Well, she 8 complained about comments that Mr. Chapin made that weren't 9 about her gender as well, comments he made about her training 10 as an economist, questions that she thought were insulting or 11 not complimentary about her relationships with her clients. 12 She claimed that nobody else -- he never made these comments 13 about anybody else, although she certainly told you that in 14 these close quarters this was a boisterous, rowdy atmosphere, 15 lots of noise, lots of people talking all the time. 16 But perhaps, more importantly, she testified that 17 after this lunch that Mr. Chapin and she had in early March -- 18 it was on March 6, 2001 -- she testified that soon after that 19 lunch these comments by Mr. Chapin stopped. They didn't 20 resolve the rest of their issues, but the comments stopped at 21 that point. 22 And the last area that she complained about were her 23 account assignments. And whether you talked about a number of 24 accounts or account management, the evidence showed 25 overwhelmingly that Ms. Zubulake was not treated worst than the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1608 544MZUB1 Summation - Ms. Plevan 1 men on the desk with respect to accounts. We showed you the 2 January 2001 list of accounts after changes were made. And it 3 showed -- P43 is the exhibit -- it showed that Ms. Zubulake had 4 more accounts than anybody else on the desk. She had 12. So 5 the notion that someone was taking things away from her just 6 isn't there. 7 We also showed that in the course of that year for a 8 number of reasons accounts were moved around and that all the 9 men on the desk lost accounts as well. It was not just shifts 10 and changes that affected Ms. Zubulake. And one of the times 11 when there were a lot of changes in accounts were when 12 Mr. Hrabchak arrived in the spring of 2001. And you will 13 remember that Mr. Hrabchak was hired to work in Boston, and he 14 was the new salesperson. And it made sense to give him 15 accounts based in Boston. And this meant that one of the 16 accounts in particular that Ms. Zubulake had spent a fair 17 amount of time with, along with others, because Mr. Clarke and 18 Mr. Datta also had responsibility for the Putnam account. 19 But it made perfect sense for the business to give 20 Mr. Hrabchak, who was going to be physically in Boston, the 21 primary responsibility for this relationship, and so that's 22 what was assigned to him. And he was also assigned 23 responsibility for the Fidelity account, which he had not 24 worked with extensively, and the account CSAM, which is the 25 place where he had come from. And others, Mr. Datta, as I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1609 544MZUB1 Summation - Ms. Plevan 1 recall, also lost his relationship with CSAM, or Mr. Beecroft. 2 I'm sorry. The list of accounts from January is P44, not 43. 3 The other important factor with respect to accounts is 4 to remember what she was given in the spring of 2001. She was 5 given responsibility for a number of hedge funds. And I think 6 we had some explanation of what hedge funds were. But what is 7 important is that she herself felt this was exciting, that 8 hedge funds were an area that was hot, that they were growing, 9 that it was going to be a very good business thing to be able 10 to service hedge funds. And this was given to her in the 11 spring of 2001, and she said that she thought it was good for 12 that reason, and she was happy to have it as her responsibility 13 also because she thought it might lead to a position working 14 with Dominic Vail, who had responsibility globally to work with 15 hedge funds. 16 Now, let's turn next to discussing those performance 17 problems I mentioned in the beginning. First, let's talk about 18 insubordination. You heard a lot of testimony about this and 19 there are documents as well that talk about the 20 insubordination. First, we have comments really from day one 21 that she made to Mr. Chapin, and she didn't deny that. She 22 said to Mr. Chapin, well, I don't report to you, or we will see 23 about that, or she would say to him when he would say that 24 something was going to happen or he was going to ask her to do 25 something. Well, I'll talk to Jeremy about that or we will see SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1610 544MZUB1 Summation - Ms. Plevan 1 about that. This is the beginning of her insubordination. 2 You also saw the frequency with which she called Mr. 3 Hardisty, and she was calling him not because of some incident 4 that occurred with Mr. Chapin. She called him on virtually 5 every business issue that she didn't like the decision, 6 including things like account assignments which you heard from 7 Mr. Holland, this is normally what the desk head decides. It 8 is not something that goes up the ladder to higher people. But 9 she would not accept these decisions made by Mr. Chapin, and 10 that created this atmosphere that was so difficult in that 11 group. 12 She even started calling Mr. Holland. You will see 13 evidence that in June she reached out to Mr. Holland, as well, 14 Mr. Chapin's boss, thousands of miles away in Hong Kong. She 15 reaches out to him. And she also sent him an e-mail which she 16 didn't copy. She had several times when she was complaining 17 about something. She didn't even give Mr. Chapin the courtesy, 18 for example, of sending him a copy of the e-mail she sent to 19 Mr. Hardisty about the seating. And then later on, when she 20 complained about this Driehaus account, she didn't send 21 Mr. Chapin a copy of the e-mail. She sent it to Mr. Holland 22 and Mr. Hardisty. She just sent it to them. 23 Now, Mr. Holland -- Mr. Hardisty for a long period of 24 time, he tolerates this. He more than tolerates this. He sort 25 of indulges her going around Mr. Chapin. But later on, towards SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1611 544MZUB1 Summation - Ms. Plevan 1 the summer, he begins to realize in many different ways that 2 this is not a healthy situation. Ms. Zubulake is not showing 3 proper respect. She is not responding to the coaching and 4 counseling. She even in the e-mail in July sort of 5 characterizes what she is doing as pestering him. So he 6 changes his view of the situation very much by then. 7 What else did we see of evidence of insubordination. 8 You heard Mr. Varsano describe how he observed her attitude 9 when they had that long meeting in May? And he is talking 10 through with her what she needs to do, that there is an issue, 11 there is a problem here. And he is trying, hoping that she 12 will commit herself to how she is going to show some respect 13 and acknowledge that Mr. Chapin, whether she likes it or not, 14 she has to report to him. 15 Remember when she met with Mr. Varsano, she told him, 16 too, she thought this was a job she should have gotten. He is 17 trying to counsel her. He understands that maybe that's what's 18 interfering with her ability to show him respect and accept 19 him, just accept him as her manager. And she says, and you 20 heard in words he could never forget. He has to earn my 21 respect. I am just not going to acknowledge him or defer to 22 him because he is my manager. He has got to earn my respect. 23 And that quite shocked Mr. Varsano. 24 We then have a report from Mr. Timblick. You will 25 remember -- and we will look at it in a minute -- Mr. Timblick SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1612 544MZUB1 Summation - Ms. Plevan 1 has a conversation with Mr. Hardisty which he reports at some 2 length on to Mr. Holland in June. And in that Mr. Timblick 3 also -- so another person on the desk says, she has got to show 4 him respect. He criticizes Mr. Chapin and he also criticizes 5 Ms. Zubulake. And he said, she has got to show him respect. 6 We also saw examples of her undermining him more 7 perhaps towards the end of the time period that we're focused 8 on, but she talks to people about him. She speaks about on the 9 desk. And you heard Ms. Kim relate incidents where she was 10 just bad-mouthing her boss not only to people on the desk, but 11 to people outside the group. And she did that as well during 12 the Korean Telcom deal. 13 Then we have how she acted during the PMM midyear 14 review. She can't accept the criticism. She challenges it. 15 It's not a good situation. But what we do know about all of 16 this evidence? It's not just Mr. Chapin that has observed this 17 insubordinate behavior. It is something that Mr. Holland 18 observed, it's something Mr. Hardisty observes, something 19 Mr. Timblick observed, and again Mr. Holland in the midyear 20 PMM. 21 What was the other area of performance problem? Team 22 player, not a team player. And this was observed by many 23 people as well. And I'd like to start by reminding you of the 24 PMM review -- I am going to read it because it is not -- we'll 25 see if we can blow it up. The first part of the review, this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1613 544MZUB1 Summation - Ms. Plevan 1 is a document you've seen many times in the course of the 2 trial. And it's the review you'll remember that was done by 3 Dominic Vail, not by Mr. Chapin. This is done before 4 Mr. Chapin is on the scene. And he is raising here some of the 5 very same issues, particularly the teamwork issue. 6 And I can't read that so well, so I'll read from here 7 just briefly. This is Mr. Vail's comment on the first page. 8 She does not score well with either ECRDs -- that's another 9 group -- or close colleagues. There is a gap between her 10 perception of herself and that of some of her colleagues. 11 ECRD's comment on her failure to leverage her relationships to 12 the benefit of the broader international team. This is the 13 kind of cooperation you heard that related to client service, 14 that part of the team player, the importance of being a team 15 player was to leverage your relationships. What that means is, 16 she knew people. She had clients. She was supposed to 17 introduce people to those clients and further the business of 18 the group and other groups as well. 19 Other team members find her difficult at times to work 20 with, and they feel that she withholds the benefit of her 21 experience. You heard that later from Ms. Kim. But it's back 22 here before Mr. Chapin even arrived. 23 I don't think that is entirely justified. At times I 24 think it's a function of being too defensive about clients and 25 potential criticism. She would do well to focus on building SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1614 544MZUB1 Summation - Ms. Plevan 1 her internal relationships and more proactively helping others. 2 I believe that there is a genuine recognition of Laura's 3 efforts to be more of a team player over the course of the 4 year. However, there is still a way to go. At times I feel 5 that it is an uphill struggle to get Laura to do things in the 6 interest of the business. Pretty serious. One has to spend an 7 undue amount of time justifying requests. Sounds a little bit 8 like her problems with Mr. Chapin. I know that Laura has great 9 potential to achieve greater things. To achieve her full 10 potential she must recognize -- she must recognize and act on 11 constructive criticism. I and many others really want her to 12 succeed, but it requires flexibility and sensitivity. 13 Let me turn to the last page. For now let me focus 14 you on the bottom -- next to the two. Then there is 1, 2, 3, 15 4. Those are the comments from Mr. Vail. We'll look at the 16 other one a bit later. But he's telling her here what her 17 developmental objectives are. First, continue to build your 18 existing client relationships. Success will be judged not just 19 in your own coverage, but in your ability to introduce others 20 to your accounts. That's the teamwork part. Get some of these 21 other people involved. This has been a weakness that needs to 22 be addressed. Again, is Mr. Chapin is there when she is being 23 criticized for this. 24 2. Work on your internal relationships. The 25 objective ranking exercise conducted internally among SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1615 544MZUB1 Summation - Ms. Plevan 1 colleagues ranked you fourth quartile. You remember Mr. Chapin 2 told you about the one that was done the following year where, 3 again, she ranked in the fourth quartile. This is the lowest, 4 the bottom 25 percent. You need to build internal 5 relationships. A lot can be achieved by addressing objective 6 No. 1. 7 Then at the very end, skip over what's in between, but 8 he talks about, again, the teamwork and what she needs to do, 9 enjoy. You are capable and respected. You have little to 10 prove. Recognize that you are part of a team. 11 Finally, he says, echoing President Kennedy's speech, 12 think not what the team can do for you, but what you can do for 13 the team. This was what she was supposed to do beginning 14 January of 2001. These were the things that she was supposed 15 to work on, and the number one issue was the teamwork. And you 16 heard that from both Mr. Holland and Mr. Hardisty. And the 17 teamwork problem, we know Mr. Vail thought it was a problem. 18 We know Mr. Hardisty learned that it was a problem. And you 19 learned about it from other people, not just from Mr. Chapin, 20 although Matt Chapin had concerns about it. But there were 21 complaints, serious complaints from many people on the team. 22 Let me just remind you about some of them. When we 23 get to April, this relates to the Putnam dinner. It doesn't 24 really relate to the Putnam dinner, though. This is an e-mail 25 that's triggered by the Putnam dinner. It is not so much, yes, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1616 544MZUB1 Summation - Ms. Plevan 1 the dinner, there was a problem, people felt left out. But 2 what's important is what it triggered. This did not come out 3 in isolation. There is a problem here. And three salespeople, 4 three of her colleagues at the very end, you'll see it is 5 signed by Andrew Clarke, Vinay Datta, Leland Timblick. 6 And what are they talking about here? They are 7 talking about the teamwork. And this is serious. Look at the 8 words there. I think what has been our strength is our ability 9 to work together unselfishly as a team. This is being 10 routinely compromised by the actions of certain people. It is 11 not only bad for our business, but is also harmful to the 12 morale of the desk. No wonder, Mr. Holland and Mr. Hardisty 13 were concerned. If one person consistently benefits from 14 acting in a selfish, uncompromising manner, it undermines the 15 whole cohesion of the operation. It is a classic free rider 16 problem. This is not just the case with Putnam, but with 17 several major accounts. 18 You heard Mr. Hardisty say he understood that the 19 comment here was about Ms. Zubulake. 20 Then there were more. Soon after this Mr. Hardisty 21 says, you know, maybe we can do it here. He approaches 22 Mr. Timblick and he says, can you -- he actually -- I'm sorry. 23 He approaches all three of them in the e-mail and says, can you 24 bury the hatchet? We need the cooperation and stability. And 25 remember Mr. Clarke's response to that. He refers to the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1617 544MZUB1 Summation - Ms. Plevan 1 television program Survivor, somewhat tongue and cheek, 2 obviously, but he is making a point and he said -- he explains 3 how Survivor works and that the team gets to vote somebody off 4 the island. And he says, I don't want to be that drastic, but 5 maybe we could vote someone to another part of the firm. 6 Again, Mr. Hardisty said, he understood they were speaking 7 about Ms. Zubulake. 8 So Mr. Hardisty now is hearing about this teamwork 9 problem not from Mr. Chapin, but from her colleagues, and he 10 hears it again from Mr. Timblick. He has this conversation in 11 June. And in that conversation Mr. Timblick raises some 12 issues, and this influences Mr. Hardisty as well. And he 13 raises these issues about Matt Chapin. Some of the issues he 14 raises is about Matt Chapin. He is not such a great head of 15 the desk. He is not a disciplinarian. He finds it hard to 16 harness the resources of the group, and he can't manage the 17 most unruly elements of the group, Clarke and Ms. Zubulake. 18 Then see what he says about Ms. Zubulake. She can be very 19 difficult and is prone to flare up, too possessive of our 20 clients. She is not always the best team player. And then 21 again, she should stop disrespecting Matt. Matt, like any 22 person, deserves respect. Mr. Hardisty is getting input from 23 lots and lots of people. 24 There is also input from the Singapore/Malaysia desk. 25 You saw those during the course of the trial where a group of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1618 544MZUB1 Summation - Ms. Plevan 1 people far away from Mr. Chapin are complaining that she is not 2 giving them the attention that they need. She is not helping 3 them. She is not doing what she is supposed to do as the point 4 person for Singapore/Malaysia, and she basically doesn't 5 respond. 6 What other evidence did you hear? You heard evidence 7 from Joy Kim about her conduct on the desk, that she was 8 difficult, not cooperative, didn't help someone who had less 9 experience, who had hoped that she would get some guidance and 10 training, and Ms. Zubulake did not do that either. 11 And you also know that no one came here who was a team 12 member. Even though many of these people don't work for UBS 13 anymore, no one came here to say, what a great team member she 14 was. 15 Next I want to turn to, we have all these problems, 16 UBS has this difficulty. Ms. Zubulake is not doing what she 17 should be doing. Did we do something about it? And the answer 18 is, of course. And you heard really lots and lots of evidence 19 about what UBS did to help her improve her performance. First, 20 you saw it in the performance review -- and this is the 21 beginning of extensive coaching and counseling of Ms. Zubulake. 22 It begins with Mr. Vail who she respected. She respected him 23 very much. You could hear that. And he tells her about all 24 the things that she needs to do. And I read most of that to 25 you already. And it was presented to her in January 2001 as SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1619 544MZUB1 Summation - Ms. Plevan 1 something she should address. Pretty clear she needs to do 2 something. 3 She then has a conversation, you heard, with Mr. 4 Hardisty in February of 2001. And in an exhibit he says, in 5 response to her, one of these what I'll call these side bar 6 conversations she is having -- this is P54 -- Mr. Hardisty 7 says, February 27, just a month or so after this PMM: Please 8 try and be part of that -- I'm sorry. The sentence before: 9 What we need now is constructive engagement by all parties. 10 Please try and be part of that process. You were right to 11 point out the problem. We need you to be part of the solution, 12 be positive, be constructive. She didn't follow this advice. 13 What happened next? Well, we talked about the lunch 14 she had with Mr. Chapin, and that was Mr. Hardisty's idea. 15 Apparently, it had some impact because she communicated 16 something to Mr. Chapin about things that he said and he 17 stopped saying them. Otherwise, unfortunately, it didn't seem 18 to do anything. 19 In this time period Mr. Hardisty also says, I'll try 20 to find you a place because, by the way, she is saying as of 21 February, she wants out. Mr. Chapin has only been there two 22 months, not even, because there is this transition period where 23 Mr. Vail is there until the end of January, he said. So we are 24 barely into February when she doesn't want to try to work with 25 the guy. She wants to leave. So she persuades Mr. Hardisty to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1620 544MZUB1 Summation - Ms. Plevan 1 try to find her another position, and he looks. But there 2 isn't anything available at that time. 3 Then in May you'll recall Mr. Varsano testified at 4 length about meetings that he had with her because Mr. Hardisty 5 came to him and said some time late April, I've tried, I've 6 talked to them. I've tried. But this is a problem. We have a 7 situation here. I need your help. And so Mr. Varsano gets 8 involved just the way human resources people do, as sort of the 9 neutral third party. He comes in and he hears what Mr. 10 Hardisty describes to him. And he then reaches out to 11 Ms. Zubulake and they have long conversations. 12 They start with a long three-hour conversation in 13 which he tries to explain to her what she needs to do. And you 14 heard his frustration at not getting through to her and his 15 frustration that he tried to offer her -- did offer her the 16 opportunity to have an executive coach, and she thought about 17 it for a few days and said, no, I am not going to do that. So 18 he was extremely frustrated. 19 What happened next? We had conversations with Mr. 20 Hardisty in July. And you'll recall that in early July Mr. 21 Holland and Mr. Hardisty are in Hong Kong and they are talking 22 about the situation. And they basically at that point reach 23 agreement on supporting Mr. Chapin as the desk head, and they 24 have to work towards getting Ms. Zubulake to be responsive to 25 that, to respect his leadership, and to conduct herself in the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1621 544MZUB1 Summation - Ms. Plevan 1 team player manner. And so Mr. Hardisty has a conversation 2 with her in mid July. And there are really two e-mails you can 3 look at that deal with that. The first is the e-mail -- this 4 is an e-mail he is sending to Mr. Holland because they have 5 spoken about the fact that after Mr. Hardisty gets back to New 6 York from the meetings he had in Hong Kong he is going to talk 7 to her, and this is what he told you on the witness stand. He 8 did, in fact, communicate to her. Yes, she matters, but she 9 has to accept Matt as her boss and afford him basic respect. 10 And she has to afford respect to the other team members. She 11 needs to show improvement in that area. 12 Then there is an e-mail, D151, where she says -- where 13 he said, he has spoken with her and he is telling Mr. Holland 14 that he spoke to her and she listened to what he had to say and 15 that he ends with his perspective on the situation at that 16 point. She maybe wanted to be treated like one of the guys. 17 She needs to ask herself how she treats him. Mr. Hardisty, 18 again, is at this point concerned still that she has not gotten 19 a message about teamwork. 20 What happened next? What did we do next? What did 21 UBS do after that? Well, you remember there was a meeting when 22 Ms. Zubulake came to Hong Kong. She was there because she had 23 not visited there a long time. She was going to meet with 24 people, hedge fund representatives. And she also had meetings 25 scheduled with Mr. Holland. And he and Mr. Chapin decided -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1622 544MZUB1 Summation - Ms. Plevan 1 really, Mr. Holland decided that it would make sense to do her 2 informal PMM, midyear PMM, while she was there. And he 3 explained to you why he wanted to do it there, because he 4 wanted to interact with her. He understood, she didn't have a 5 good relationship with Mr. Chapin. He wanted to have the 6 ability to talk to her to try to improve the situation. It 7 didn't work out that way. 8 As you heard, there was a conversation, a PMM review. 9 It didn't go well because Ms. Zubulake fought back at 10 Mr. Chapin, challenged him, didn't focus on what it was that 11 perhaps she could do differently, what changes she should make. 12 And Mr. Holland found that very frustrating because it 13 continued in the conversation that he had with her afterwards. 14 He then asked Rose Tong to meet with her and, as you 15 heard, she went and spoke to Rose Tong, another HR person, 16 senior, very experienced HR person. And you will see from the 17 memo that Ms. Tong wrote at that meeting, as well as her 18 testimony, she tried to get the message across. And she was 19 very direct and she tried to really say to Ms. Zubulake, you 20 know, there are only a limited number of options here, what can 21 happen. You better understand what the consequences will be if 22 this issue is not addressed. 23 She then has a meeting. She then comes back to New 24 York and has a meeting with Mr. Chapin. And he impresses this 25 upon her. July 31, they have a meeting. And he impresses this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1623 544MZUB1 Summation - Ms. Plevan 1 one her very seriously, so much so that this is the night she 2 calls Mr. Hardisty like five or six times in the middle of the 3 night when he is on vacation because she is upset. So somehow 4 she got some type of message, but she didn't act on it. 5 What's the next formal thing that UBS does? Well, 6 Mr. Varsano is still the HR person in the east coast managing 7 this situation, and he gets a report about the message that was 8 delivered to Ms. Zubulake really several times in the month of 9 July. Mr. Hardisty speaks to her in mid July. Then she has 10 her PMM review. Rose Tong meets with her and sends this long 11 e-mail to Mr. Varsano. And then she speaks to Mr. Chapin 12 again. And Mr. Varsano is the one who says, look, this is not 13 the way to proceed here. You have given her a warning. You 14 have told her that she is going to be fired, which he doesn't 15 change. 16 So we need to make it very clear to her, we need to 17 put it in writing that that's what the situation is. That's 18 the genesis of the two-page warning memo that she got on August 19 9. And you have seen that document before as well and it 20 identifies the areas that we have talked about, particularly 21 the lack of teamwork and the insubordination. 22 And this is what happens all through August 9. 23 Remember also, on August 9, after the warning memo is 24 delivered, Mr. Varsano again has a long conversation with her, 25 which doesn't help because she's not listening to him. And, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1624 544MZUB1 Summation - Ms. Plevan 1 after that, there is no improvement. 2 Mr. Chapin gets counsel during this period as well. 3 You saw a number of incidents, particularly at the end of June, 4 when Mr. Hardisty sits him down and says -- has what he called 5 a concerned conversation. And unlike what happened with 6 Ms. Zubulake, Mr. Chapin is taking this all to heart and he has 7 a different attitude. All of this work that started back at 8 the end of the year 2000 goes all the way up, almost every 9 month there is something being communicated to Ms. Zubulake 10 about what she needs to do to change. And with all of that it 11 is really no wonder that Mr. Orgill later on is impatient when 12 he hears more time is going to pass before Ms. Zubulake is 13 terminated. 14 Now, what's also apparent and probably understood, 15 because she didn't change, is that she didn't accept the 16 criticism. And you'll see that in many, many different ways. 17 And someone who doesn't think they did anything wrong won't 18 change. If they don't accept the criticism, they are not going 19 to do anything about it. What you'll see is that she never 20 suggested something she would do differently. Look back in 21 particular at the PMM from Mr. Vail. Because it's one of the 22 places where she addresses this in writing twice. And in 23 response to one series of his comments -- this is the end. 24 You'll have the whole document to read. But she's here 25 responding to and she agrees on several points. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1625 544MZUB1 Summation - Ms. Plevan 1 But there is a lot of buts, including as we get near 2 the end. She is a bit surprised to hear that I do not make an 3 effort with other desks. I feel my efforts are commensurate 4 with those made by other desks. I'm doing just as well, just 5 as much. And, however, if it was noted as a weakness, I will 6 try to improve. I am also a bit surprised at my 3C rating with 7 regard to building client relationships. 8 Let's turn to the last page of the same document. We 9 looked before at what's No. 2, which were the developmental 10 objectives by Mr. Vail. And look at the developmental 11 objectives that she states at the top. And it's more about 12 what's not there than what is there. Because she is being told 13 over and over again that teamwork is an issue and she doesn't 14 say a word there about it, not a word. 15 Then again, when she does her self-evaluation -- and 16 you saw that and I am not going to read the whole thing to you. 17 It is Exhibit D155 -- she says this is what Mr. Holland asked 18 her to prepare to go over what her issues were with Mr. Chapin. 19 And what is remarkable about this is that not just that it 20 doesn't say anything about gender discrimination. We pointed 21 that out before. That's consistent with what we believe was 22 the case here. 23 But what's more remarkable, perhaps, is that all she 24 does is talk about what Mr. Chapin does wrong and how he needs 25 to change. She doesn't say a word -- it is a very long SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1626 544MZUB1 Summation - Ms. Plevan 1 document -- she doesn't say a word about perhaps maybe there is 2 something I did that bothered him and maybe there is something 3 I can do to change. She says at the end: I sincerely believe 4 that if Matt could learn to respect and openly support me with 5 regard to my client relationships and others on the team and 6 not feel threatened that I take issue with some of his actions 7 in managing the desk that we could move forward effectively. 8 If Matt can make these changes, I would feel more comfortable 9 bringing any issues that might arise to him first before 10 involving senior management. That's her perspective of the 11 situation. And even when she testified here at the trial, we 12 didn't hear a word about what she did to improve her 13 relationships either with Mr. Chapin and, more importantly, 14 perhaps, with her colleagues. We didn't hear anything about 15 that. 16 Let me turn to the second claim, the claim of 17 retaliation. And the judge will be instructing you that the 18 mere fact that plaintiff filed a charge of discrimination with 19 the EEOC and was subsequently terminated is not sufficient in 20 and of itself to establish her retaliation claim under the law. 21 And that makes good sense because otherwise someone who, as 22 Ms. Zubulake was, was given a formal written warning telling 23 them if they didn't fix things they were going to be fired 24 could just file a charge of discrimination and have another 25 claim that they could assert. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1627 544MZUB1 Summation - Ms. Plevan 1 And I would say that if you looked at the e-mail that 2 Mr. Hardisty wrote about a conversation he had with 3 Ms. Zubulake, you would wonder if that isn't exactly what 4 Ms. Zubulake had in mind. Because he says -- this is -- again, 5 the warning was on August 9, as you know, and the conversation 6 he's recounting here took place on August 21, after she filed 7 the charge, and he recounts their conversation. She said that 8 last Thursday, Friday, she was absolutely convinced she was 9 about to be fired. She had tried to get a meeting with me, but 10 I hadn't appeared in New York, as I had said I would, which is 11 true, and she had also reached out to Dominic Vail, who had not 12 got back to her in 24 hours. As a result of both of these 13 events, she felt that her allies were cold-shouldering her and 14 that her dismissal was therefore inevitable. That is why, in 15 her words, that she had the lawyer bring notice of the EEOC 16 action. 17 You know that it isn't enough just to file a charge to 18 establish a claim of retaliation. There is a burden of proof 19 just as there is with a claim of discrimination, and the burden 20 of proof is on the plaintiff to show that it was a 21 determinative factor in the decision to terminate her. And the 22 reason it is not a determinative factor is that there is 23 evidence of -- there are two things. First, there is the 24 failure to improve and then there is things that happened after 25 August 9 that were performance issues, not unlike the problems SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1628 544MZUB1 Summation - Ms. Plevan 1 that we have before. And we will just summarize those. They 2 are all in the record, either in documents or in testimony. 3 We start with Mr. Varsano's disappointing conversation 4 with her on August 9 that she took no initiative during that 5 time period. 6 Then there is the rumors reports from two different 7 people that she is bad-mouthing Mr. Hrabchak to two different 8 people. This is recorded to Mr. Chapin in writing by 9 Mr. Hrabchak and also by the head of Singapore research. 10 Then there is the incident that Mr. Chapin described 11 of her undermining her at a meeting where he proudly is 12 talking. He is trying to build team morale. He is talking 13 about what a great job they did, and she just throws in this 14 zinger, but, yeah, it wasn't all that because of X, Y, and Z. 15 That was her attitude. 16 Then you heard from Ms. Kim that there were incidents 17 of her -- of bad-mouthing him to other people on the desk and 18 outside the desk, and she reports these matters to Mr. Chapin. 19 Then there is Mr. Datta and there are several reports 20 here of different things that happened. 21 Then there is, Mr. Chapin described them and it is in 22 the documents that when she is supposed to be reaching out to 23 this Everest account, one of her new accounts, she doesn't do 24 anything. Lackadaisical about it. Mr. Datta sends an e-mail 25 to Mr. Chapin complaining that in two different accounts she SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1629 544MZUB1 Summation - Ms. Plevan 1 undermined him; again, lack of teamwork. And the list goes on. 2 The documents, I think, that Ms. Zubulake is arguing 3 that it wasn't good to have these documents, that somehow 4 documentation is a bad thing, well, you heard from the human 5 resources people and others that that's the professional thing 6 to do. They were asked to put things in writing. It's 7 important to have these things written down so that no one will 8 dispute what exactly occurred and so others can read it and 9 have the information. 10 Now, Ms. Zubulake, I believe, will raise two issues 11 about the retaliation claim. 12 THE COURT: I need to interrupt you one minute. On 13 the chart that you just had up, can you put that back up on the 14 screen for one second. Thank you. 15 I do need to remind the jury, a number of the items 16 that were summarized in that chart were statements that I 17 permitted to be admitted in evidence for a limited purpose. 18 There were certain people I said the statement is not offered 19 for its truth because they are not here, so it is not offered 20 for their truth, but just to show the recipient might have had 21 his or her state of mind affected by receiving that 22 information. We went through that a number of times. 23 Go ahead. 24 MS. PLEVAN: Yes, your Honor. That's exactly right. 25 These were reported to people, Mr. Chapin and to Mr. Hardisty SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1630 544MZUB1 Summation - Ms. Plevan 1 in particular. 2 Now, the two things that I believe will be raised, one 3 is that two months was a short time period and somehow the fact 4 that she was terminated two months after the warning would 5 suggest that it was done in retaliation, that it was two months 6 after the warning and roughly six weeks or six and a half weeks 7 after she filed a charge. 8 But the circumstances of this case are such that you 9 know that this was not a short time period. Again, I went over 10 the whole history. The warning was a culmination of many, many 11 sessions of counseling, of coaching of Ms. Zubulake, many, many 12 messages conveyed to her. In fact, the expectation was that 13 she would be given 30 days to straighten up. And, in fact, in 14 the end she was given 60 days. And that 30-day time period is 15 important also in understanding Mr. Orgill's state of mind, and 16 that's the other point that I'm sure Mr. Hubbard will be 17 raising with you. 18 Mr. Orgill told you, first of all, he didn't really 19 know Ms. Zubulake. He had met her twice briefly. She doesn't 20 dispute that. He was Mr. Holland's boss. He wasn't familiar 21 with the details. He wasn't evaluating her performance 22 himself. What he did know was what Mr. Holland told him he did 23 know that she had a performance problem and he knew that this 24 had been going on for a long time, and he wanted something done 25 about it. He told you that Mr. Holland had a tendency to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1631 544MZUB1 Summation - Ms. Plevan 1 procrastinate. So when he heard that this might get delayed, 2 he was disturbed. He was concerned. Let's put it that way. 3 He thought this should go ahead just as it would have despite 4 any intervening circumstances. He understood on August 9 she 5 was given 30 days. 6 And when he gets to September, he is saying, yeah, we 7 should act on this. Because he understands the nature of his 8 problem as well. And it doesn't look to him that this is 9 something that's going to change because it has been going on 10 not just for a couple of weeks. It's been going on for months 11 and months. So he is focused on the timing. He's frustrated 12 about it. He expresses his frustration. He doesn't do 13 anything. He probably had the power to order her to be 14 terminated then. He didn't do that. He left it up to the 15 people, the group in New York, the six people in New York, 16 Connecticut, and Ms. Tong was the other person counting as the 17 six who were focused on this directly, and Mr. Holland also in 18 Hong Kong. 19 And these were the six decision makers. These were 20 the people who made the decision, not Mr. Chapin acting alone 21 or somebody rubber-stamping what Mr. Chapin thought should 22 happen. This was being driven by more senior people and with 23 very, very heavy involvement by human resources. So you really 24 have to ask yourselves whether all six of these people would 25 have had the kind of intent that Ms. Zubulake suggests that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1632 544MZUB1 Summation - Ms. Plevan 1 they would, and she would have to prove that they had in order 2 to win this case. 3 There is nothing to indicate that Mr. Holland or Mr. 4 Hardisty or any of the HR people had any bad motive, any ill 5 will. She makes lots of accusations about Mr. Chapin, but not 6 about the other people, and certainly not about gender bias by 7 any of these other people. 8 Let me turn now briefly to the subject that the Court 9 will also instruct you on, which is damages. And, of course, 10 the Court will also instruct you that you won't get to the 11 issue of damages unless you believe that there is 12 responsibility on the part of UBS, unless you find that the 13 plaintiff met her burden of proof. Only then would you address 14 the issue of damages. 15 There are several points we would like to make with 16 respect to the subject of damages. One is that the Court will 17 tell you with respect to the issue of mitigation that a 18 plaintiff such as Ms. Zubulake must make a reasonable effort to 19 minimize or reduce her damages for loss of compensation by 20 seeking comparable alternative employment. It is the 21 defendant's burden to prove that plaintiff failed to take 22 reasonable steps to diminish the extent of the injuries she 23 suffered. And we believe we have absolutely satisfied that 24 burden of proof because we've shown that the effort that 25 Ms. Zubulake made to find other work, except, perhaps, for the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1633 544MZUB1 Summation - Ms. Plevan 1 first six months after she was terminated, was very minimal, 2 close to nothing. And we showed this to you in a number of 3 ways. 4 One way we showed it to you was by your hearing her 5 qualifications. It's really hard to believe that someone who 6 has had experience for 20 years, has an MBA from NYU, has 7 written a book on complicated subjects relating to convertible 8 securities would not in the space of three and a half years be 9 able to find a job. Well, we know why she didn't find a job, 10 because she didn't try. And one of the ways we can show that 11 is that she relied a lot on e-mail communications, but you'll 12 see the number of e-mails she sent were very, very few, and the 13 number of people she sent them to were very few. 14 Now, ask yourselves, what would you have done? And 15 she knew a lot of people by the way. She had been in many, 16 many different organizations. So she knew a lot of people and 17 she had a lot of client relationships. So in the year 2002, 18 she only sent e-mails to 27 people; and in 2003, 24; and 2004, 19 only eight, and in that year -- the prior years, just think 20 about the number of e-mails. That's about one a week. In 21 2004, one every other week. Ask yourselves, if you were out of 22 work, needed a job, what kind of effort would you make to find 23 a job? 24 Now, what the judge will tell you is that for any 25 period that she did not make a reasonable effort you should SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1634 544MZUB1 Summation - Ms. Plevan 1 find that she hasn't satisfied her obligation and reduce any 2 damages by the amount of compensation she could have earned had 3 she worked during that period. She is not entitled -- if we 4 have proven that she didn't mitigate for whatever time period, 5 let's say it's the last two years that we are talking about 6 here, she shouldn't recover any damages for that period. 7 The judge is also going to instruct you on the issue 8 of front pay. And the plaintiff, in addition to asking you for 9 what she didn't earn over the last three and a half years, is 10 also going to ask you for money into the future. I don't know 11 for how long she will ask you, but for some period into the 12 future. The judge will tell you that front pay should be 13 awarded only if you conclude that the plaintiff has no 14 reasonable prospect of obtaining comparable employment and if 15 you conclude that calculation of the award is not unduly 16 speculative. 17 She will also instruct you that in determining the 18 amount you must calculate the amount equal to the value wages 19 and benefits she would have earned had her employment at UBS 20 not been terminated for the period from the date of your 21 verdict to the date plaintiff would have voluntarily resigned 22 from UBS, or obtained comparable employment. 23 And both with respect to the issue of back pay and 24 front pay, I want you to focus on Ms. Zubulake's job history 25 because it speaks to this issue in several respects. And this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1635 544MZUB1 Summation - Ms. Plevan 1 graph shows you the different jobs she had and the length of 2 time she was in those jobs. And the UBS job is the purple one 3 at the very end. Even though she was terminated you will see 4 that she was longer at that job than seven other jobs of the 5 nine other jobs that she had. One of them -- two of them she 6 was at longer and one of them only a few months longer. So she 7 had as much staying power at UBS as she had at virtually any 8 other place. 9 So to award her anything beyond what her average time 10 period would be would not be consistent with what her job 11 history is. One way or the other, whether it was voluntary or 12 involuntary, she moved on. This was her practice. She moved 13 on to another job. And for you to speculate about something in 14 the future, in particular, but even as to the past, you can't, 15 just with that job history, assume that Ms. Zubulake would have 16 continued to work at UBS. It just was not her pattern at all. 17 Let me turn next to an issue that the judge will instruct you 18 on as well and that I'm sure Mr. Hubbard will mention. And you 19 have received a preliminary instruction about it as well. 20 I'm sorry. Before I do that, I meant to show you just 21 a calculation to give you an idea -- let me go back to the 22 damages issue for a minute. I meant to show you this. And 23 this is an analysis that we did based on what we saw as the 24 mitigation efforts that Ms. Zubulake had made. And also common 25 sense. So we say that it would be reasonable to think that she SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1636 544MZUB1 Summation - Ms. Plevan 1 made suitable mitigation efforts through May 2002. 2 Why did we pick that date? Well, six months is a 3 reasonable amount of time. Ms. Zubulake, she moved around a 4 lot. She was never employed for six months before. You can 5 tell that from the charts. But also this was the period when 6 she was most active. She had interviews during that period. 7 Her last interview was April 10. You see that in the 8 documents. And this is the period when she is keeping a record 9 of what she is doing. She has a calendar, remember, and her 10 calendar, she said, ended in May of 2002. 11 After that, she is not keeping any records. Even 12 though she has started a lawsuit, she knows she is going to 13 have to come here and testify about it. She doesn't keep a 14 diary. All she has got are her e-mails and a few letters. And 15 you saw some materials. This is what it was, a few inches 16 covering three and a half years. We have no diary of any phone 17 calls or other contacts that she claims to have made. 18 So that's a reasonable time period and the calculation 19 there is based on the bonus one could reasonably think she 20 would have received for 2001 because, remember, you were told 21 by Mr. Orgill and others that bonuses were down 60 percent from 22 the prior year. Nobody was earning what they earned that last 23 year. So that's the kind of basis on which a projection should 24 be made. 25 Let me then now go to the issue of the preservation of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1637 544MZUB1 Summation - Ms. Plevan 1 e-mails, and what I think you will be told is that somehow 2 there was an effort here to conceal evidence, and you've seen 3 evidence. You've seen dozens and dozens of e-mails. They were 4 furnished. And what the judge is going to read you is an 5 instruction about an inference that you are permitted to draw; 6 not that you're required to draw, but that you're permitted to 7 draw because of the failure of certain people to keep the 8 e-mails on their active servers. 9 And what the judge is going to say, among other 10 things, is that some of these e-mails, the e-mails were 11 recovered from backup tapes, but others could not be recovered 12 because the backup tapes no longer existed for certain months 13 or portions of certain months. And she will also say that no 14 one could ever know what would have been on those backup tapes 15 and whether relevant e-mails would have been recovered and 16 produced. The ones from the backup tapes that weren't 17 preserved on active servers, there were eight or ten. Some of 18 them are very helpful to a defense. 19 There were others -- when you are thinking about this, 20 you will need to decide, among other things, or consider 21 whether any additional e-mails which you have not heard any 22 testimony about would have been material in any way, or would 23 they have been cumulative? These are the factors that you 24 would take into account. And, again, this is just something 25 that you are asked to consider. You are not required to draw SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1638 544MZUB1 Summation - Ms. Plevan 1 any adverse inference whatsoever. And when you consider as 2 well this issue, you should also remember that Ms. Zubulake 3 herself testified that she didn't keep all her e-mails relating 4 to this matter either. 5 I would just like to conclude with making reference to 6 a few things that this case is not about. This case is not 7 about whether Matt Chapin is a good manager or a bad manager. 8 That's not the issue. And you are also not here to decide a 9 personality contest between Ms. Zubulake and Mr. Chapin. Maybe 10 you wouldn't vote for either one of them in such a contest, but 11 that's not the issue. 12 The only issue for you to decide is whether her gender 13 or the fact that she filed a charge of discrimination was a 14 determinative factor in the decision to terminate her, a 15 decision made by a group of people, not Mr. Chapin. 16 And when you hear the charge you will also be given an 17 instruction about the defendant's business judgment. You 18 should keep in mind -- this is what you will be told -- that 19 UBS was entitled to make any policy or business judgments it 20 chose, however unwise, misguided or unreasonable they may 21 appear to you, so long as UBS was not basing its judgment on 22 plaintiff's sex or the fact that she filed a charge of 23 discrimination. You may not return a verdict for plaintiff 24 just because you might disagree with defendant's decision to 25 terminate her or because you believe it to be harsh or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1639 544MZUB1 Summation - Ms. Plevan 1 unreasonable. 2 When you deliberate, please keep those words in mind 3 and also keep in mind some of the key factors that we have 4 reviewed during the course of the trial and that I have 5 reviewed just now, that there were ongoing performance issues 6 with Ms. Zubulake starting back in the year -- end of the year 7 2000 under Mr. Vail, before Mr. Chapin arrived. And they were 8 the same kind of performance issues that she had later on. 9 Keep in mind also that the kind of performance issues 10 she had, particularly the teamwork, affected everybody. This 11 was not just a matter of Mr. Chapin versus Ms. Zubulake. She 12 was jeopardizing the success of the team as a whole by the way 13 she was conducting herself. And despite the extensive coaching 14 and counseling she received, she did not improve and she didn't 15 even acknowledge that there was a problem that she needed to 16 address. 17 The decision was made, as I said, by the group of 18 people. It is clear that group included three human resources 19 professionals whose job it is to understand what is in 20 compliance with policy and law. And it included two senior 21 managers, including in particular Mr. Hardisty, who had been 22 her biggest friend and supporter. And when you consider all of 23 these facts and all of the evidence, we ask that you please 24 return a verdict in favor of UBS on both her claims. 25 Thank you. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1640 544MZUB1 1 THE COURT: Thank you, Ms. Plevan. I think it would 2 be wise to take our morning recess now and then hear the 3 plaintiff's summation. We will reconvene at 11:30. We will 4 take a 10-minute recess. Thank you. 5 (Jury not present) 6 THE COURT: It didn't get shorter. It was about 95. 7 We had hoped for 90. 8 Mr. Hubbard, you can't exceed that. Try very hard to 9 stay within it. 10 MR. HUBBARD: They are going to be getting hungry. 11 THE COURT: You have 90 if you need it. 12 MR. HUBBARD: Thank you so much. 13 (Recess) 14 (Jury present) 15 MR. HUBBARD: May I, your Honor? 16 THE COURT: Please. Yes, Mr. Hubbard. 17 MR. HUBBARD: May it please the Court, ladies and 18 gentlemen, good morning. I get to speak to you during the 19 lunch hour, so I may hear your stomach growl and you may hear 20 mine, but I hope that you will bear with me for the next hour 21 or so, hopefully not much longer. 22 It is an important hour for our client, Laura 23 Zubulake. The issues raised by this case are fundamental to 24 the experiences she has had in her lifetime. They are issues, 25 obviously, to her and certainly to the defendant of great SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1641 544MZUB1 Summation - Mr. Hubbard 1 importance, and so I hope my words in the next hour will fairly 2 summarize the strength of the evidence in her case. 3 Some time this afternoon, or when you decide, you will 4 return a verdict in this case. When I first spoke to you I 5 indicated to you that verdict means to speak the truth. And so 6 when you return that verdict, it will determine for everyone in 7 this courtroom, for all of the lawyers and, most importantly, 8 for Laura Zubulake and for UBS, where the truth lies in this 9 evidence. 10 First, a word of thanks. All of us here appreciate 11 your jury service. We know that you didn't necessarily 12 volunteer to be here, but we have seen that all of you have 13 taken your responsibility with great patience and with great 14 care, and we are all grateful for that service. I hope you 15 have seen from your service here how important this jury system 16 is to the resolution of disputes. We are a country of laws. 17 Our jury system separates us from law and often tyranny. It 18 gives every citizen the right to have a jury of their fellow 19 citizens decide their dispute, not a government, not any other 20 body. It's a jury of their peers who makes this decision. We 21 come to you this morning as a jury in the position to render 22 the verdict in this case. 23 The claims in this case we began with, the Court will 24 tell you in its instruction are the claims of the violation of 25 federal, state, and New York City law. I will review them with SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1642 544MZUB1 Summation - Mr. Hubbard 1 you in just a moment. It is unlawful, under the laws of these 2 jurisdictions, for an employer to intentionally discharge, 3 otherwise discriminate against any person with respect to 4 compensation, tenure, conditions or privilege of employment 5 because of that person's sex. It is also unlawful for an 6 employer to intentionally discharge or otherwise discriminate 7 against any individual because they have exercised their right 8 under these statutes to complain and seek redress for this 9 wrongful conduct. 10 There are two claims. One is gender discrimination, 11 that UBS in this case discriminated against Laura Zubulake by 12 terminating her, that one of the determining factors in that 13 decision was her gender; secondly, when she exercised her right 14 to complain about the discrimination she believed she had 15 suffered because of her gender that UBS retaliated and fired 16 her because she exercised a lawful right to complain about that 17 discrimination. 18 Importantly in this case those two claims join because 19 retaliating against an employee and firing them because they 20 exercised their lawful right to complain about discrimination 21 is the ultimate form of discrimination. It's the ultimate form 22 of unequal treatment. It's the ultimate form of 23 discrimination. 24 If you decide that the evidence supports the plaintiff 25 on either one of these claims, or both, then you will be asked SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1643 544MZUB1 Summation - Mr. Hubbard 1 to return an appropriate damages award under the instructions 2 that the Court will give you, and I will review with you at the 3 end of my presentation the law that applies to the damages that 4 you are allowed to award under these statutes if you rule in 5 her favor. 6 The retaliation in this case did not begin in August 7 of 2001. It began from the very first day that Laura Zubulake 8 complained about Matthew Chapin. You will recall that early in 9 February two of her managers, Mr. Vail and Mr. Hardisty, said 10 that he was looking to fire her. Chapin did not even know what 11 she looked like by the time he was prepared to fire her. They 12 retaliated against her again because after she complained about 13 him and he got warned 30 days later, they warned her and 14 threatened to fire her twice. And the third time came on 15 August the 21st of 2001. 16 Now, you have been with us here for two weeks of trial 17 and you just sat through an hour and a half argument by UBS's 18 counsel. And not one time in the two weeks we have been 19 together have they mentioned, put on the screen, asked a 20 witness about the three exhibits I am about to show you, as if 21 they did not exist, as if they were some of the documents that 22 they failed to keep and were never found. In a moment you are 23 going to learn that two of them were not preserved and were 24 found only because they were recovered from a backup tape, two 25 of the three you are about to see. Despite instructions of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1644 544MZUB1 Summation - Mr. Hubbard 1 their lawyers, they didn't save. 2 You have seen this one, ladies and gentlemen, many 3 times. And what you see there are the three e-mails that show 4 beyond any doubt that when Laura Zubulake exercised her lawful 5 right to complain about this discrimination, file that 6 complaint, they said get rid of her now. It wasn't two months 7 later after she had not improved or after her performance had 8 deteriorated when there was nobody around but Mr. Chapin to 9 document whether it had deteriorated or not. It was this day. 10 And this defendant comes in this courtroom and looks 11 you in the eye and never mentions one of those three documents 12 and tells you that, oh, no, Mr. Chapin -- Mr. Orgill had 13 nothing to do with this. He sat on the stand and told you he 14 did not know about the EEOC claim. He said on the stand and he 15 told you that he did not have the authority to terminate her 16 and was not involved in the termination. They are all lies. 17 In just a moment I am going to go through the testimony you 18 heard on that stand. 19 Now, why does a defendant come in a courtroom -- they 20 don't think you left your common sense at the door when you 21 walked in here. Why do they come in here and tell you, give 22 you testimony that is blatantly false? I can't answer that for 23 you. Maybe they think they will get off, maybe it is the 24 arrogance. They are so arrogant, they think that they can walk 25 in here and waltz in here and for an hour and a half wander SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1645 544MZUB1 Summation - Mr. Hubbard 1 through this retaliation and never mention three of these 2 pieces of paper, two of which they tried to conceal. 3 The first one says at the bottom: I spoke to Brad. 4 He's looking to exit her ASAP, by the end of the month. This 5 is within 24 hours of receiving the EEOC claim. They didn't 6 wait two months. They waited less than a day to retaliate 7 against her. You said you were on call with the U.S. yesterday 8 and that we need U.S. legal advice, but be aware he's looking 9 to finalize quickly, exclamation mark. 10 The second one is a response from Hardisty to Orgill, 11 seven days later -- nine days later, somewhere around the 31st 12 of August or the 1st of September. LZ, okay. What does okay 13 mean? It means exit her ASAP. They came in this courtroom and 14 told you that Brad Orgill had nothing to do with this case and 15 he kept his name off of the organizational chart, and you are 16 going to hear in a moment the testimony of two of their own 17 witnesses who tell you that he is the boss and he had to sign 18 off on it. They just left his name off the chart. Put it 19 right in front of you for the whole trial. 20 Mr. Orgill doesn't even exist. The man who ordered 21 the big boss, everyone agrees, the senior man of this 22 organization, and they want to hide him because his name is on 23 these documents retaliating against her. Okay. Once lawyers 24 have been signed off, probably one month. 25 Now, in a moment I am going to show you that there is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1646 544MZUB1 Summation - Mr. Hubbard 1 one e-mail we didn't find because Hardisty is writing to Orgill 2 and he is responding to him. No question about that. LZ, 3 okay. He didn't just pick up the computer and just type an 4 e-mail to Mr. Orgill right out of the blue. He responded to 5 Mr. Orgill. That one we didn't find. The one on the top from 6 Orgill back to Hardisty: Thanks. It's a pity we can't act on 7 LZ earlier. Let's wait while the lawyers make sure that nobody 8 can prove retaliation. Let's wait a nice two months and let's 9 have this meeting and let's tell the jury that we got around a 10 table and we evaluated her and we documented her and her 11 performance deteriorated and then we decided in October that we 12 were going to terminate her. That is bunk. That is not what 13 happened in this case and everybody in this room knows that. 14 Here is what the witnesses said on the two critical 15 issues. UBS wants to say that Brad Orgill didn't know about 16 the EEOC claim. So when he says, exit her ASAP, maybe that 17 means something else. So that's one way of avoiding tagging 18 the senior man with responsibility for this immediate 19 retaliation. Secondly, they want to say, even if he did, he 20 had nothing to do with terminating this employee, both contrary 21 to what their own witnesses said. They said right here and put 22 those people on the stand and asked them questions and each of 23 them contradicted both positions that they tell you. 24 Here is what they said. Orgill testified that he did 25 not know about the EEOC complaint when he had this conversation SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1647 544MZUB1 Summation - Mr. Hubbard 1 with Mike Davies on August 21 and when he corresponded with 2 Hardisty a few days later. So when he said to Mike Davies -- 3 remember Mike Davies said to you, I got it right. I didn't get 4 that e-mail wrong. What I wrote down was what he told me. And 5 he said: I spoke to Brad. He's looking to exit her ASAP. 6 Orgill, when I said that to Brad, I didn't know anything about 7 the EEOC complaint. 8 August 21, 2001. When I wrote back to Hardisty and I 9 said, it's a pity we can't act on LZ earlier, I didn't know 10 anything about her having filed a claim. When I got an e-mail 11 from Hardisty saying okay, once the lawyers have signed off, 12 what else is going on? Are they trying to promote her? They 13 are firing her. And so he says, I didn't know anything about 14 it. I certainly didn't know -- I don't know when I knew he 15 said it, but certainly I knew by October, but I certainly did 16 not know in August, right there on that stand. 17 Well, exit ASAP, without knowing anything else, was a 18 reaction to a major event. He didn't just wake up one morning 19 and say, exit her ASAP, finalize quickly, exclamation mark. 20 Let's kind of move her over to the Asiapac structure. This was 21 a reaction to a major event in that organization, and we all 22 know what that major event was. They all had this big 23 conference call and they had this e-mail and they all went 24 bonkers and said, what are we going to do about this? The boss 25 decided, we are going to fire her. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1648 544MZUB1 Summation - Mr. Hubbard 1 Mr. Holland got on the stand and he made it clear that 2 he spoke to Orgill and told him about the EEOC claim the day 3 before, on the 20th of August. Holland: On August the 20th, I 4 was on the call with Amone, and I was told the EEOC complaint 5 had been filed Monday, August 20. I received a copy of the 6 EEOC complaint on that day. Mr. Holland is the guy that's 7 right below Orgill. 8 I asked him: When you received that, you believed 9 that you then discussed it with Mr. Orgill, that's true, is it 10 not? 11 "A. I believe that's right." 12 Holland told him, of course, exit her ASAP. He said 13 it was important, it was a newsworthy event. I discussed it 14 with Rose Tong. I felt it important for both of them to know. 15 Of course, he did. Somebody just filed a claim of gender 16 discrimination against UBS in his shop. 17 Now, this defendant knew what John Holland knew when 18 he walked in this courtroom. Yet, they put Orgill on the stand 19 and let him tell you that he didn't know about and they knew 20 what Mike Davies was going to say. Mike Davies spoke to him 21 about it. He received the EEOC complaint by fax from Rose. 22 You've seen it the morning before he writes to Rose with the 23 report. He received it that morning. You know there is an 24 e-mail down below that that says thanks, Rose, I got the 25 complaint. So Mike Davies has it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1649 544MZUB1 Summation - Mr. Hubbard 1 And after hundreds of pages of that deposition we read 2 you, after Mr. Batson took his deposition three times, three 3 times, finally, he says -- he concedes that he indeed spoke to 4 Orgill on August the 21st when it was clear that Davies had the 5 EEOC charge in his hand. And he testified that he wrote 6 Orgill's words down accurately, e-mail a fair reflection of the 7 conversation. Brad is looking to exit her ASAP. So are we 8 going to believe that Mr. Davies got on the phone with the big 9 boss -- Mr. Davies is the head of HR. They are peers, kind of. 10 They are the top of the management. That he got on the phone 11 with the big boss and he had the EEOC complaint sitting on his 12 desk, big deal, and they didn't talk about it. 13 And we also know -- look at e-mails and we can confirm 14 that he spoke to Orgill on August the 21st because when he 15 writes to Rose he says: I told Brad, you were on the call with 16 the U.S. yesterday. Yesterday was Monday, August the 20th. We 17 know that Mr. Davies and finally he had to concede that the 18 conversation took place on the 21st. Orgill knew about the 19 EEOC complaint. Davies did. They discussed it, the exit ASAP 20 followed. There is no other conclusion. 21 Now, Mr. Orgill -- this story about Mr. Orgill not 22 being involved in the decision to terminate her. You don't 23 have to go beyond looking at those three pieces of paper to 24 know that he was not only involved, but he made the decision. 25 You've heard the story about how everybody let it go for two SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1650 544MZUB1 Summation - Mr. Hubbard 1 months so they could document her and, then, finally, she is 2 not doing too good. She is falling down on all these things. 3 She hasn't done anything. 4 For the first month, from the time she was warned 5 until the 9th of September, she was the only person at work. 6 The rest of them are on vacation. I am going to show you the 7 chart in a minute that the defendants put up. There is not a 8 single time between August the 9th and September the 7th that 9 she failed to do anything. Rose Tong on the 21st, the day she 10 talked to Mr. Orgill, she puts a little sticker when she 11 printed hers out that her performance has deteriorated. 12 How would Rose know? Who told her? They were all on 13 vacation. Ms. Zubulake didn't tell her that. They were 14 starting to paper that file. They had an EEOC complaint. And 15 they knew that they were going to fire her and now they want to 16 build that file so they can do it. 17 But equally important, this contention that Orgill was 18 not involved. Why do we want to say that? Well, let's pretend 19 that it wasn't his responsibility, so maybe he wouldn't have 20 known anything about it. Orgill right to you sitting on that 21 stand, right there, he said: I did not weigh in on the 22 decision to terminate. Now, you can reject that by just 23 looking at the board, looking at the screen. But what did the 24 witnesses say? I asked him again: Did you communicate to 25 anybody your desire that she be terminated? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1651 544MZUB1 Summation - Mr. Hubbard 1 "A. No." 2 Hardisty told you, although he tried to tell you that 3 it was something different, that it was some Asiapac stuff. 4 Hardisty got on the stand and conceded that Orgill said to get 5 rid of her. There was no dispute about that. By the 1st of 6 September, even Hardisty said that Orgill had said to get rid 7 of her. They tried to pretend it was something different than 8 retaliation. 9 What did Mike Davies say? When you spoke to Orgill on 10 August the 21st, we asked him about exiting LZ ASAP, whose 11 decision would it be? The senior man in Asia in human 12 resources, the man who would know about every hiring and every 13 termination. You remember what he said. He said it would be 14 senior equities management. We said: Who is that? He said: 15 Huw Jenkins and Brad Orgill. He didn't say Hardisty, Amone, 16 Chapin, et cetera in Stamford. So the senior HR man tells you 17 that it was Mr. Orgill's job to do it. And then Mr. Holland 18 got on the stand and said exactly the same thing. 19 Orgill would be involved -- actually, he didn't say 20 the same thing. I misquote myself. I had to impeach him with 21 his prior sworn testimony. Because on the stand he said: No. 22 We sat down up in Stamford or where and made this decision and 23 Orgill was not involved. I had to pull out his deposition. He 24 raised his right hand and swore to tell the truth and he said: 25 Orgill would be involved with any hire. He would have to sign SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1652 544MZUB1 Summation - Mr. Hubbard 1 off on any hire, or any termination, so, yes, in that case he 2 would have been involved in termination of a sales employee. 3 How do you avoid a retaliation charge in this case? 4 You spin the story that the decision was made in October that 5 Orgill did not know about the filing and to insulate Orgill 6 that he was not involved in the decision. That's the defense. 7 You should reject it and you should be insulted. You should be 8 insulted that it was made to you. The decision was made on 9 August the 21st, 2001, within hours of Orgill learning of the 10 EEOC complaint. 11 So, ladies and gentlemen, before I go any further, on 12 this verdict form that you will see there are two places to 13 answer yes or no. And one is, did UBS retaliate against Laura 14 Zubulake because she exercised her lawful right to complain 15 about the discrimination we are going to talk about some more 16 in a minute? And I suggest to you that the answer to that on 17 this evidence must be yes. 18 And the second question is, did they discriminate 19 against her on the basis of her sex? And the sentence is, on 20 the retaliation alone, absolutely, yes, because retaliation is 21 the ultimate act of gender discrimination because when you 22 complain that you've been treated unfairly because of your sex 23 and they turn around and fire you, that stands the whole law of 24 discrimination on its head. 25 I want to step back for a minute and talk a little bit SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1653 544MZUB1 Summation - Mr. Hubbard 1 about the chronology of Ms. Zubulake's employment because you 2 heard this morning for an hour or so the story about whether 3 she was a good employee or not, whether she had a poor 4 performance or not, whether she had failed. Apparently, in 5 some effort to suggest that at some point somewhere there was, 6 A, a reason to terminate her or, B, a lack of gender 7 discrimination. 8 What I want to show you this morning is, I am going to 9 turn it around for a minute and show you that the failure in 10 this case was not hers. The failure in this case was theirs. 11 It was them that disrespected this employee. It was them that 12 set up this employee. It's them that solicited complaints to 13 her file. It was her manager who showed employees how to write 14 complaints about her. It was her manager who forged records. 15 Can we say that some valid decision was made that all 16 these complaints -- you should reject virtually every one of 17 them because from day one. Day one, Chapin was in trouble and 18 his only way to survive was to turn around and generate 19 complaints against her and make her the loser in this battle. 20 You want to talk about teamwork for a minute? How about 21 getting in front of your team and telling everybody that she is 22 old and ugly? That's teamwork? How about getting in front of 23 all the members on the desk and saying, you want to get rid of 24 her? What's that going to do for teamwork? How about saying 25 that her clients don't like her? How about saying she is a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1654 544MZUB1 Summation - Mr. Hubbard 1 pain in the ass? To him, that meant she was people like Lisa 2 Marrapodi and people like Peggy Yeh, people like women is what 3 this man had to say. 4 So if you want to talk about teamwork for a minute, we 5 can talk about it for a long time. There was no teamwork on 6 this desk because they had a dysfunctional manager, and this 7 woman, rather than working on teamwork, let's say, worked on 8 surviving a sexist. That's what she did. 9 I am going to read to you in a minute the memorandum 10 she wrote to Mr. Holland when she was out in Asia. That's not 11 a woman who is causing trouble. It is not a woman who didn't 12 love that company, who didn't love her job, didn't want to 13 work. It was a woman who was pleading for somebody to document 14 the right person, not the wrong person. There she was alone. 15 She went out and filed a EEOC complaint. What is the ulterior 16 motive to that? The ulterior motive when you file a EEOC 17 complaint, when she says help me, the ulterior motive is exit 18 her ASAP. 19 You remember that Mr. Vail took her side as early as 20 January and said, this guy is looking to fire you. Now, here 21 is a woman who in the year 2000 who was the second highest paid 22 person on the desk. You can talk all you want to about that 23 PMM, but you look at that. To say that's a bad recommendation 24 is just to have a dark view of history. She was the second 25 highest paid person on that desk. She got above, she got SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1655 544MZUB1 Summation - Mr. Hubbard 1 exceeds expectations on teamwork and yet she was a failure on 2 teamwork in 2002. She didn't have any problem with teamwork, 3 with insubordination or anything else until Chapin walked in 4 the door. To take that 2000 evaluation and characterize it as 5 being something negative, you got to be kidding. She was the 6 second highest paid person on that desk. She was at least as 7 high as anybody else on teamwork when there was a team and a 8 leader in place on that desk. 9 Vail took her aside and said, this guy is looking to 10 get you fired. He hardly even knew her. A few weeks on the 11 job he is after her job. And she asked to see Mr. Hardisty and 12 he said, come on, ride in the car with me. You remember the 13 testimony about riding down to New York and he sends her an 14 e-mail before and says, I am not surprised you called because 15 others have complained about her. He says in the e-mail, you 16 know, at some point he says, you know, she waited until she 17 couldn't wait any longer. She didn't pick up the phone and go 18 running somewhere. She didn't give up on this fellow. But 19 after two or three months of this abuse, she called, as she had 20 the lawful right to do under their rules, and said, I need to 21 talk to you. She didn't make a big deal out of it. She didn't 22 go to HR. She didn't file an EEOC complaint. She tried. 23 In February, Hardisty says to Chapin, I told him he 24 should not be considering firing her. Now we are into 25 February, Chapin is now trying to fire her a second time. If SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1656 544MZUB1 Summation - Mr. Hubbard 1 you listen to UBS, she was a failure. 2 Now, what happened from there? Eventually, Hardisty 3 and the other managers got fed up with Chapin. I am not going 4 to read you all the e-mails. You heard some this morning that 5 talked about Ms. Zubulake's performance. I am not going to 6 read you all the ones that talked about Mr. Chapin's 7 performance, because you know what happened, all those e-mails 8 about there being chaos at the desk, about him being 9 dysfunctional, about the problem he was having. 10 Finally, they decided to give him a warning. Hardisty 11 says, I want to give him a formal warning, which they all say 12 is bad because at the end of the line now they say if you don't 13 improve we are going to fire you. So Holland gets involved and 14 the result is, they have a concerned conversation. Sit down 15 with the boss. The boss says, we have got to make some 16 changes. The changes Matt Chapin made were that 30 days later 17 he and Holland set her up in Hong Kong with no notice. I am 18 going to show you in a moment the minutes. It is not even on 19 the agenda. They send her out to Hong Kong and they say, do me 20 a favor. Let's have your midyear performance evaluation while 21 you're jet-lagged, while you're over here with nobody with you. 22 We are going to have your midyear performance. 23 And then they have the midyear performance and they 24 have this nice chat about what she's doing. We are going to 25 bring this up when you get back. We will give you some SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1657 544MZUB1 Summation - Mr. Hubbard 1 examples. She gets back. 30 days after Chapin's warning she 2 has got a real warning and it says: If you don't improve, you 3 are going to be fired. That's when this woman, with no one to 4 turn you, tries to find Mr. Hardisty, tries to find somebody to 5 say, you know, she has just written this memo that I am going 6 to read to you saying, this is the problem. If this man will 7 stop treating me this way, we can make this work. And so she 8 filed the EEOC claim, exit her ASAP. 9 That PMM, as you know, was not on J -- J68, please, 10 for a minute. 11 When Holland wrote her the memo about her trip to 12 Asia, when he wrote this memo to her about coming out, he 13 says -- he says, we are shortly going to do your midyear PMM. 14 He didn't even tell her Chapin and I had decided to do it when 15 you land. He didn't even tell her. They didn't even put it on 16 her agenda. She sees this. She gets it Monday when she is in 17 Hong Kong and she writes those two memos. And her evaluation 18 is done and, of course, she is being set up to be warned. 19 Maybe somebody said instead of investigating Laura 20 Zubulake, maybe we should investigate Mr. Chapin. Apparently, 21 that didn't happen. But all through this, all through this, 22 you will see time and time again she never abandoned that job. 23 She says, I love this job. I want to keep this job. I want to 24 do everything I can to keep this job. She made it so clear. 25 At the same time, while she was making it clear as she was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1658 544MZUB1 Summation - Mr. Hubbard 1 being treated differently from men, yet, she wasn't being 2 treated like the men on her desk. We don't have to spend the 3 rest of the afternoon on it, but you've sat here and heard with 4 us how she was degraded, how she was demeaned, how she was 5 insulted, how she was belittled, how she was excluded, how she 6 was punished, how her accounts were taken from her. The Janus 7 account she spent all the year 2000, big mutual fund out in 8 Denver that Vail pointed out how wonderful it was that she 9 developed that big client relationship. Chapin walks in the 10 door and takes that right away, right away from her. 11 The man says, she is old and ugly. That's gender. He 12 didn't say that about the men. He said it because she is a 13 woman and the implication of that was clear, she is old and she 14 is ugly, and she can't do the job. She should leave. He made 15 it clear to people he wanted to get rid of her. And so in the 16 atmosphere of these attacks on her, the story became that she 17 didn't respect Mr. Chapin. In this atmosphere the story became 18 that she didn't buy into teamwork. Tell me, tell me that these 19 things have anything to do with teamwork. They are the 20 opposite of teamwork, and I asked Mr. Holland that on the 21 stand. I said, Mr. Holland, doing these things to this 22 employee, was that disrespectful to her? And he said yes. 23 You remember Peggy Yeh testifying. We asked her lots 24 of questions. What did Chapin do or say with respect to women 25 that leads you to think there was anything different in the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1659 544MZUB1 Summation - Mr. Hubbard 1 treatment they received? An example of her answer: There were 2 lots of sexual insinuations against women. He would comment on 3 Susan Kim's underwear, how low-cut her dress was, that she 4 needed to wear a bra. Did Chapin comment on the appearance of 5 men in the same fashion? No. Did he make a comment about 6 Laura Zubulake? What did he say? Just that she was a pain in 7 the ass and she was old and ugly and she needs to quit. Did 8 you have any understanding did Mr. Chapin say he wanted these 9 salespeople to document Ms. Zubulake? Yes. What did he say? 10 He said we need to get rid of her. 11 Now, the story you hear is, they are documenting her 12 because Mr. Varsano says that's what the law requires. 13 Mr. Varsano didn't save some of the e-mails you are going to 14 see in a moment. Mr. Varsano was not trying to help Laura 15 Zubulake. 16 Mr. Chapin would say to me -- remember when she was 17 about to leave, before she left, don't bite the hand that feeds 18 you. Tell us what Chapin told you about the exit interview 19 before he conducted it. This lawsuit was pending. This 20 lawsuit where there have been an intentional failure to 21 preserve e-mails, there have been efforts to conceal these 22 documents by putting attorney-client privilege on the front. 23 This lawsuit is pending. He says to Peggy Yeh, he said to me, 24 don't say anything negative because this is a small industry. 25 If you want to go somewhere in the industry, everybody recycles SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1660 544MZUB1 Summation - Mr. Hubbard 1 and you don't want to leave a black mark. How did you perceive 2 what Chapin said to you that he felt threatened that I was 3 going to say something negative and how did you respond? She 4 goes on to say, I felt he was warning me, sort of threatening 5 me not to say anything. The cover-up never stopped. It never 6 stopped in this case. 7 So she was insubordinate and she was not a team 8 player. She stood up for herself. That's what she did wrong. 9 She stood up for herself just like she has since the day she 10 went to college and did it in three years instead of four, 11 because four cost your mother and father more than three. And 12 when she went to business school and she went at night, she 13 worked in the day and went at night. She is not the only 14 person that has ever been to school at night. She is not the 15 only person that has tried to save money. But this is one 16 hard-working woman, this evidence shows, and she stood up for 17 herself. 18 You know, she went to school up at NYU a few blocks up 19 the street. She finished first in her class going to school at 20 night. And so now we hear that when she lost this job she 21 didn't make any effort to get another one. She didn't try to. 22 Ladies and gentlemen, this woman would rather have 23 UBS's W2 than any verdict you could give her. If you said to 24 her today, you can walk out that door and go back to work and 25 take that job and that career that you built, she would embrace SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1661 544MZUB1 Summation - Mr. Hubbard 1 it and you would know that, as well as I do. But she can't. 2 She can't. Because this company literally destroyed her 3 career. There are 6,000 hits on Google with her name on it. 4 There is not a business, law firm, or human resources 5 department at any major firm in the city that doesn't know her 6 name by heart because of this case and what it has meant. 7 And part of that is because of the efforts to cover up 8 what happened. And so when somebody says, you tell me that 9 Laura Zubulake didn't try to get a job, you tell me about the 10 night -- you look in that 300 file and you see the days before 11 Christmas that she sat at her desk and wrote these people and 12 said, you know, happy -- I hope you have a nice holiday and a 13 nice new year. I'm still looking for a job. 14 They removed her from her valuable accounts. They 15 churned her accounts so she couldn't do the job. They 16 solicited, then fabricated complaints about her. 17 I want to show you two, ladies and gentlemen -- 18 Do you have 102 or 101, Pete? 95 or 97, or 101 or 19 102? Do you have that one with the highlighted portion, 20 please? Thank you. 21 Ladies and gentlemen, these exhibits are in evidence. 22 I think they are -- I want to say that they may be 101 or 102. 23 Look at Mr. Chapin's memo at the top, UBS client attorney 24 privilege only. No lawyer involved. He is writing this to Joy 25 Kim. He is telling her what to write. I just wanted to let SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1662 544MZUB1 Summation - Mr. Hubbard 1 you know that LZ is still having derogatory conversations about 2 you. He is saying I want you to write a complaint. She seems 3 not to care that I'm in earshot of her. She writes the same 4 thing. 5 And now go to 95 and 97. 6 You remember, ladies and gentlemen, that when Chapin 7 reported this to Holland, Varsano, and Tong, reported to HR at 8 UBS, he, first of all, puts this UBS attorney-client privilege 9 on it and then he manufactures a complaint. The judge will 10 tell you that if you find that any portion of a witness's 11 testimony is false about any material matter that you may 12 reject their entire testimony as false. 13 Let me talk to you for a moment about the e-mails in 14 this case. 15 Ladies and gentlemen, earlier the Court read to you a 16 series of e-mails under stipulation that indicated that these 17 e-mails were only produced after they were restored from backup 18 tapes, and I think you now understand that when this case got 19 going, some backup tapes were searched and e-mails were located 20 that had not been produced earlier in the case because they had 21 not been preserved. 22 You heard the Court's instruction at the beginning 23 that the Court had found that several UBS employees failed to 24 preserve some of their e-mails after they had been repeatedly 25 instructed by counsel to do so. That's called willful and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1663 544MZUB1 Summation - Mr. Hubbard 1 intentional destruction of relevant evidence. The Court 2 explained that some of these e-mails were eventually recovered 3 from backup tapes and others could not be recovered because 4 backup tapes no longer existed for certain months. 5 And the Court is going to give you in your jury charge 6 an adverse inference instruction that tells you what you could 7 do based upon that finding, what types of inferences you can 8 draw from that conduct. And I want to show you the nature of 9 the e-mails that we found only on the backup tapes and what 10 these recovered e-mails showed about the attempt to cover up 11 these violations. Because when you see what was not produced, 12 then, of course, you can make a rationale determination that 13 what bearing upon this case, if any, what was not recovered 14 might have. 15 Some of these e-mails were sent to human resources and 16 were not preserved. Several senior UBS executives, Chapin, 17 Hardisty, and Orgill, and at least one HR manager, Varsano, 18 failed to retain relevant e-mails about Ms. Zubulake. Many of 19 these e-mails are so obviously significant to her claim that it 20 is inconceivable that anyone would fail to preserve that after 21 being ordered to do so by UBS's attorneys. 22 Either way, UBS acted willfully to conceal relevant 23 evidence in this case. Here is some examples of what was 24 recovered. 25 P212, please. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1664 544MZUB1 Summation - Mr. Hubbard 1 You may remember Jeremy Hardisty's e-mail concerning 2 the concerned conversation. I think it is on the bottom when 3 Mr. Hardisty warned Chapin: We learned that the concerned 4 conversation and warning Hardisty gave to Chapin was abstracted 5 from a backup tape. Varsano kept this e-mail for two months, 6 from June the 29th to August 1, and after that point, his copy 7 and Hardisty's copy of those e-mails vanished. 8 You may recall J82, please. 9 This is the LZ okay. Copy to Varsano in HR. This 10 e-mail was not preserved by Orgill, Hardisty, or Varsano and it 11 was recovered on a backup tape. 12 J84, please. 13 Thanks. It's a pity we can't act on LZ earlier. Same 14 story. Located, recovered on the backup tape. 15 J99, please. 16 J99, ladies and gentlemen, is the complaint that I 17 went over with you before. I just wanted to let you know the 18 problems I have with LZ. This one was retained. 19 J102, please. 20 This one shows -- this was found on the backup tape. 21 219, please. Go to the second paragraph, please. 22 This one found -- go to J94, please, or J2, either 23 one. Is it J94 or J2? That's not the right one. It's the one 24 without the language added to it, Pete. Do you have J94? 25 I'll find it in a moment. I'll move off of that. We SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1665 544MZUB1 Summation - Mr. Hubbard 1 will find it in just a moment. 2 As I indicated to you, ladies and gentlemen, one of 3 the e-mails that is missing is obviously the correspondence 4 between Orgill and Hardisty when Hardisty writes Orgill and 5 says okay. Don't exit her in 30 days. That correspondence, 6 whatever form it took, is missing. 7 So in the heart of all this evidence, in the heart of 8 all this evidence, this defendant tries to cover up their 9 conduct. And what's the relevance of that? There are two 10 possible inferences. One is on these e-mails. And the Court 11 will give you this adverse inference instruction that you may 12 infer, if you wish, that what was not found, that what was 13 deliberately and willfully not saved, despite their lawyers' 14 instructions, if found, would have aided Ms. Zubulake's 15 evidence and would have discredited in some way the evidence of 16 the defendant. 17 The second inference is the more powerful one and that 18 is that these efforts to conceal and cover up this evidence 19 demonstrates a consciousness of wrongdoing. That's why the 20 cover-up takes place. It takes place in an attempt to conceal 21 wrongdoing. And we say to you that that is the more likely, 22 that is, the more powerful; that is, the more powerful 23 inference to be drawn in this case from this evidence. 24 Now, I am going to move for a moment, if I may, to the 25 issue of damages. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1666 544MZUB1 Summation - Mr. Hubbard 1 Do you have the damages chart, please, Pete? 2 You will recall Ms. Plevan went over some issues with 3 you on the issue of damages. If you find on either of the 4 claims for Ms. Zubulake either that she was intentionally 5 discriminated against or she was retaliated against unlawfully, 6 or both, then you will be asked on your verdict form to return 7 money damages to compensate her for the loss that you find she 8 has suffered based on the judge's instructions about two 9 things, one called back pay, and one called front pay. And 10 they are relatively logical. 11 Back pay means what you decide she has suffered from 12 the time she was terminated in August of 2001 until today. So 13 that would be some part of 2001. She was paid nine or ten 14 months of her salary before she was terminated. She had lost 15 her bonus in 2001. Then the year 2002, she lost all her comp; 16 and in the year 2003 she lost all her compensation; and in the 17 year 2004, she lost all of her compensation. The defendant 18 argues -- the defendant, of course, argued to you that for 19 portions of that period you should not award her compensation. 20 In this period here, again, certainly there is no 21 evidence in here that should benefit this defendant that 22 Ms. Zubulake did not make the very best efforts she could to 23 find employment. And on top of that is the fact that in her 24 efforts to find this employment she is walking up against her 25 name, not famous, but now infamous, and associated with this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1667 544MZUB1 Summation - Mr. Hubbard 1 EEOC complaint and this document issue and the claim in this 2 case. 3 Does it surprise anybody that when she walks in the 4 door in this city on Wall Street and looks to restore the 5 career that she had, after 20 years of work from morning to 6 night, that the door slams in her face? If you decide that she 7 has been deficient and she has not made a fair effort to find 8 another job in the year 2003, then you would not award her lost 9 pay because she is supposed to be doing the best she can to 10 find a comparable job. You will hear that in the instructions. 11 The law is you are entitled to try to replace your career in a 12 reasonably comparable job. 13 And so when you look at it, consider whether or not 14 she has made a reasonable effort to replace herself in a 15 reasonably comparable job. If you find that she has, then for 16 the years '01, '02, '03, '04, we will ask you to award her 17 what's fair compensation for making her whole for having been 18 wrongfully discriminated against and wrongfully retaliated 19 against and wrongfully taken away from her job. 20 And these numbers look as follows. In 2001, she is 21 not there. She doesn't get a bonus. So what we do is, 22 remember there was testimony that the bonuses were down in 23 2001, so we took a look at that Mr. Clarke is down at 22 24 percent, his bonus is down at 22 percent. I think they all get 25 roughly the same base pay. And we got Mr. Datta's down at 34 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1668 544MZUB1 Summation - Mr. Hubbard 1 percent. So we gave her the benefit of the doubt and we had 2 hers down at 34 percent. You might decide to take it down to 3 32 percent if you compare it to Mr. Clarke. If you compare it 4 down to 34 percent, her total compensation in 2001, we say, 5 with $330,000 bonus with her base pay would have been roughly 6 $480,000. 7 And from that $480,000 in the year 2001, you have to 8 subtract an amount that you determined she already received in 9 terms of the salary. The defendants have argued in that year 10 she received already about eight or nine months of her salary. 11 Her claim in that loss were two or three months of her salary, 12 plus that $330,000 bonus. 13 If we go to 2002, the testimony was that the bonuses 14 were about 5 percent. So we have taken the bonus you have to 15 346,500 and taken it up by 5 percent and the total comp in that 16 year, 2002, is 496,500. We say her loss in that year as a 17 result of her -- as a result of the unlawful conduct in this 18 case is $496,500. 19 On the second page, please. There are two more years, 20 2003 and 2004. The testimony was that the bonuses were up a 21 little bit more in 2003. We took the 5 percent Mr. Orgill gave 22 us and went to 10 percent. And so that would project her comp 23 in 2003 at 531,150; and in 2004, there was testimony about the 24 bonuses were back up but still down. Mr. Orgill said that it 25 was an individual issue. We have raised the 40 percent year SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1669 544MZUB1 Summation - Mr. Hubbard 1 that he received to and we have taken it up to $683,000 in 2 2004. That total is $2,041,260 less the amount she received in 3 salary in 2001. Because she was paid her salary for the first 4 nine months of that year. 5 To the bottom, please, on the issue of front pay. 6 Now, counsel read you the instruction on front pay. 7 And the instruction on front pay is to make the plaintiff whole 8 for the period that you believe that she would have, absent all 9 of this discrimination if Mr. Vail stayed in that job, somebody 10 like Mr. Vail that valued her work and under whom she thrived. 11 No Mr. Chapin. 12 For the period of time that she would have stayed at 13 UBS in the future, whatever you decide it is -- if you decide 14 it is five years, if you decide it is ten years, if you decide 15 it is 15 years, whatever that year is, you take her base 16 compensation, basically, and you don't increase it, and you 17 don't reduce it for present value, and you take it up. 18 Counsel argued that counsel put a chart on the board 19 and argued to you that you should consider her average work 20 life at each of these -- at these jobs. And she said, well, 21 maybe she stayed at all of these jobs about two years. If you 22 average them all out, some four, some one, some two, she only 23 stayed two years, you should give her two years of pay. She 24 didn't elect to leave. She didn't decide to leave. She loved 25 that job. She was good at it. She was talented. She had 20 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1670 544MZUB1 Summation - Mr. Hubbard 1 years on Wall Street with one of the world's largest financial 2 institutions. She didn't decide to leave. They made that 3 decision. But they want you to say, well, she would have left 4 anyway. 5 It is not a question of when they would have fired 6 her. It's when you decide she would have left or retired and 7 you look at this woman and tell me that this woman who got up 8 every morning, every working day of her life, would have walked 9 out of the door of that $650,000-a-year job. Not in this 10 lifetime. 11 I'm reminded, ladies and gentlemen -- I know it is 12 getting to be lunchtime here. I want to read something to you 13 that somebody said, you know, that's a lot of money. 14 You can take it down. Let me do one thing first 15 before we take it down. The jury may not have this. 16 The five-year total is between 3,250,000 or 3,400,000. 17 Just fixing it as of 2000 and taking it forward, the ten-year 18 number is between 6 and a half million in front pay and 19 6,836,000 in front pay, and 15 years the rest of her work life 20 essentially up until she would be 60 is $9,750,000 to 21 10,254,000. I look at those numbers and I say, this woman made 22 a lot of money. And this back pay and front pay is a lot of 23 money in this lifetime. 24 I want to read you a poem written by the American poet 25 Edgar A. Guest. It is called Results and Roses because it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1671 544MZUB1 Summation - Mr. Hubbard 1 tells you what you have to do to do what she did. 2 If you want a garden fair, or small or very big, with 3 flowers growing here and there, you've got to bend your back 4 and dig. 5 The things are mighty few on earth, that wishes can 6 attain, whatever we want of any worth, we've got to work to 7 gain. 8 It matters not what goal you seek, its secret here 9 reposes; you've got to dig from week to week, if you want 10 results or roses. 11 Nobody gave Laura Zubulake that job. Nobody gave her 12 $650,000 a year. She earned it. She worked for it, every 13 single day and they took it away from her. 14 Let me talk about the jury instructions for a moment, 15 please. Ms. Plevan reviewed with you the Court's instruction 16 that in order to find that there was intentional discrimination 17 or intentional retaliation that the decision -- that the 18 retaliation or the gender discrimination must be a 19 determinative factor; therefore, have a causal connection. So 20 you have to find that there was a connection between the 21 discrimination and the decision to terminate her, between the 22 discrimination and the retaliation, between the retaliation and 23 the decision to terminate her. 24 Let me take retaliation as an example. The filing of 25 the EEOC complaint was the only factor. It wasn't just a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1672 544MZUB1 Summation - Mr. Hubbard 1 determinative factor. It was the only factor within less than 2 24 hours, fired. No such thing as determinative factor in that 3 equation. It was lock step. The filing was the factor. The 4 defendant would say no. They would say that retaliation was 5 not a factor. But they say, for example, that they went to 6 their lawyers and the lawyers considered all this stuff and, 7 finally, after the lawyers had considered all this stuff, they 8 made a decision. 9 Lawyers don't decide to fire employees. Managers do. 10 Lawyers are advisors. It's the managers who makes the 11 decision. The lawyers' involvement -- you could consider with 12 me what the lawyers' role was in this case. I say to you that 13 the lawyers' role was making sure that they tried to do the 14 best to make the file look like they didn't retaliate against 15 her. That's why they had to wait for the lawyers and let it 16 take 60 days. The lawyers knew what the retaliation claim was 17 all about. And so did every single manager you heard from. 18 Because one thing you heard was each of us, Mr. Batson 19 or I, as we examined these witnesses, say, did you know when 20 you did this, Mr. Orgill? Did you know? Did you know, Mr. 21 Holland? Did you know, Mr. Chapin? Did you know that the law 22 prohibited discrimination on the basis of gender? Yes, sir, I 23 did. Did you know that the law prohibited retaliating against 24 an employee for filing this complaint? Yes, sir, I did. 25 So none of this stuff was an accident. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1673 544MZUB1 Summation - Mr. Hubbard 1 Ladies and gentlemen, I am about finished. This is a 2 gender discrimination case. Ms. Zubulake, we say, was 3 discriminated against because she was a woman. About 100 years 4 ago, just downtown to my left a -- three steamships in the year 5 1892 sat off New York Harbor. And on one of those ships was a 6 15-year-old girl from Ireland. Her name was Annie Moore. On 7 the 1st day of January of 1892, Ellis Island opened. And this 8 young woman was the first person to step foot on Ellis Island 9 and to pass through New York Harbor into the United States. 10 There is a story written about her and it has some 11 significance, I think, to this case. I want to read it to you 12 real quickly. 13 On the first day of January 1892, they opened Ellis 14 Island and they let the people through. And the first to cross 15 the threshold of that aisle of hope and tears was an Annie 16 Moore from Ireland who then was 15 years. In a little bag she 17 carried all her past and history, and her dreams for the future 18 in this land of liberty. And courage is the passport when your 19 whole world disappears. There is no future in the past when 20 you're 15 years. 21 When they closed down Ellis Island in 1943, 17 million 22 people had come there for sanctuary, and in the springtime when 23 I came here and stepped onto its peers, I thought how it must 24 have been when you're only 15 years. I imagine the courage of 25 the young woman that got on that vessel and sailed to this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1674 544MZUB1 Summation - Mr. Hubbard 1 country over 100 years ago and stepped foot on Ellis Island and 2 came to live here among us. We all see acts of courage every 3 day in our lives. 4 There is no lack of courage, ladies and gentlemen, in 5 this case. There is no lack of courage in what Laura Zubulake 6 lived through and did to bring this case in this courtroom. 7 She exercised her lawful rights. She stayed within the law. 8 She lived by the rules. The defendant did not. The rules were 9 not good enough. The rules were not good enough for them. And 10 so today courage is her passport when her whole world has 11 disappeared. And my hope is that she has much of it, much of 12 it in the years ahead. 13 We say to you that on this evidence, on this evidence, 14 on this verdict form, did UBS discriminate against Laura 15 Zubulake on the basis of her sex or gender? The answer is 16 properly yes. We say to you on this evidence that did UBS 17 retaliate against Laura Zubulake for exercising her lawful 18 right to complain? We say to you that this evidence suggests 19 yes. And we ask you if you reach that conclusion on one or 20 both that in returning your verdict on damages that you do 21 justice, that you look upon the issue of damages in light of 22 the effort that she has made and the position that they have 23 left her in and that your verdict truly speak what the truth is 24 and where justice lies in this case. 25 Thank you, all. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1675 544MZUB1 1 THE COURT: Thank you, Mr. Hubbard. The only thing I 2 don't know is whether your lunch has arrived. My clerk asked 3 for it at 12:45. It should be pretty soon. Not knowing when 4 it is there, I can't say exactly when we will reconvene. The 5 only safe thing to say is 1:45, but if you all turn on the 6 light at 1:30, we will try to be ready. We will look for your 7 lights. I'm saying 1:45. But if you're all done by 1:30, I 8 want to give you that charge and get you going. Thank you. 9 (Jury not present) 10 THE COURT: Their food is not there. We are going to 11 be calling them. 12 Given that, it is a good time to read into the record 13 the ruling on the motions. It is anticlimactic after the 14 summations we have done, but it has to be done for the record. 15 Couple of nights ago I denied them and said I would give you 16 the reasons a little later on. I am going to do it in an oral 17 ruling not terribly detailed. 18 The standard for judgement as a matter of law is set 19 forth in Federal Rule of Civil Procedure 50(a), and I quote: 20 "If during a trial by jury a party has been fully 21 heard on an issue and there is no legally sufficient 22 evidentiary basis for a reasonable jury to find for that party 23 on that issue, the Court may determine the issue against that 24 party and may grant a motion for judgment as a matter of law 25 against that party with respect to a claim or defense that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1676 544MZUB1 1 cannot other than controlling law be maintained or defeated 2 without a favorable finding on that issue. 3 The Supreme Court has held that "the standard for 4 granting summary judgment mirrors the standard for judgement as 5 a matter of law, such that the inquiry under each is the same." 6 That's Reeves v. Sanderson Plumbing, 530 U.S. 133, 150 (2000). 7 Accordingly, the Court must review all of the evidence in the 8 record, drawing all reasonable inference in favor of the 9 nonmoving party, but may not make credibility determinations or 10 weigh the evidence. That's also Reeves. "Thus, although the 11 Court should review the record as a whole, it must disregard 12 all evidence favorable to the moving party that the jury is not 13 required to believe." Again, that's Reeves at page 151. In 14 other words -- I'm still quoting Reeves -- "the Court should 15 give credence to the evidence favoring the nonmovant as well as 16 that evidence supporting the moving party that is 17 uncontradicted and unimpeached, at least to the extent that 18 that evidence comes from disinterested witnesses. Reeves at 19 the same page, 151. The standard is, of course, applicable in 20 the Second Circuit. See Wolf v. Yamin, 295 F.3d 303, 308 (2d 21 Cir. 2002) ("The district court must view the evidence in the 22 light most favorable to nonmovant and grant that party every 23 reasonable inference that the jury might have drawn its 24 favor."). 25 Applying that standard to this case, I hereby deny SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1677 544MZUB1 1 defendants' motions for judgement as a matter of law with 2 regard to plaintiff's discrimination claim. The evidence that 3 came in at trial was consistent with the evidence submitted by 4 plaintiff in opposition to defendants' motion for partial 5 summary judgment. For example, there was evidence that Chapin 6 referred to plaintiff as old and ugly, used the term chicks and 7 yellow fever, and spoke of getting rid of her and her clients 8 in front of other members of the desk. There is also evidence 9 that Chapin generally treated her less respectfully than he 10 treated the male members of the desk. For example, when 11 plaintiff tried to respond to criticism from a superior, Chapin 12 commented in an e-mail to that superior that her response put 13 him to sleep, which he admitted did nothing to help her improve 14 her relationship with that superior. 15 In addition, there is evidence that plaintiff is 16 sometimes excluded from client outings and that major accounts 17 were taken away from her account package. Plaintiff also 18 testified that clients were invited to a strip club and she 19 refused an invitation to attend. Furthermore, Leland Timblick, 20 one of plaintiff's former colleagues on the desk who allegedly 21 had performance problems, was permitted to resign from his 22 position instead of being involuntarily terminated. Finally, 23 there is the issue over the seating chart and whether plaintiff 24 was intentionally separated from her male colleagues. 25 Because I denied the defendants' motion for partial SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1678 544MZUB1 1 summary judgment based on this evidence, I must also deny 2 defendants' motion for judgment as a matter of law. See Kerman 3 v. City of New York, 374 F.3d 93, 118 (2d Cir. 2004) ("When the 4 Court of Appeals, on a prior appeal in the same case, has held 5 that the evidence in the record is legally sufficient to 6 prevent summary judgment in favor of a given party, that party 7 is foreclosed from arguing that virtually the same evidence 8 presented at trial, is not legally sufficient to employ 9 judgment as a matter of law."). 10 I also deny defendants' motion with regard to 11 plaintiff's retaliation claim. The requirement that plaintiff 12 show a causal connection between her EEOC complaint and her 13 termination is satisfied by the temporal proximity between the 14 two. See Lovejoy-Wilson v. NOC Motor Fuel, 263 F.3d 208, 224 15 (2d Cir. 2001). "The causal connection needed for proof of a 16 retaliation claim can be established indirectly by showing that 17 the protected activity was closely followed in time by the 18 adverse action." Quinn v. Green Tree Credit, 159 F.3d 759, 769 19 (2d Cir. 1998) (finding that the causal connection requirement 20 was satisfied simply because the plaintiff's discharge came 21 less than two months after one complaint and just ten days 22 after another); and that, finally, Manoharan v. Columbia 23 University College of Physicians and Surgeons, 842 F.2d 590, 24 593 (2d Cir. 1988). "Proof of the causal connection can be 25 established indirectly by showing that the protected activity SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1679 544MZUB1 1 was closely followed in time by the adverse action." Here, 2 there was, at most, a two-month period between plaintiff's 3 warning letter on August 9, 2001 and her final termination on 4 October 9, 2001. Furthermore, there is evidence that the 5 decision to terminate plaintiff was made as early as August 21, 6 2001, five days after she filed her EEOC complaint on August 7 16. Those were not acted upon immediately in order to cover up 8 UBS's retaliatory intent. Accordingly, there is enough 9 evidence of sufficient temporal proximity to establish 10 causation and let plaintiff's retaliation claim go to the jury. 11 Now I turn to punitive damages. Punitive damages may 12 be recovered under Title VII where the plaintiff establishes 13 that the employer "engaged in a discriminatory practice with 14 malice or with reckless indifference to the federally protected 15 rights of an aggrieved individual." That was a quote from 42 16 United States Code Section 1981a(b)(1). In Kolstad v. American 17 Dental Association, 527 U.S. 526 (1999), the Supreme Court 18 articulated a three-part standard for determining whether 19 punitive damages should be permitted. 20 First, the plaintiff must first demonstrate that the 21 employer acted with the requisite mental state, namely, malice 22 or reckless indifference to the federally protected rights of 23 an aggrieved individual. The Supreme Court emphasized that the 24 statutory terms malice and reckless ultimately focused on the 25 actor's state of mind. Although egregious misconduct is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1680 544MZUB1 1 evidence of the requisite mental state, Section 1981a does not 2 limit plaintiff to this form of evidence, and the section does 3 not require a showing of egregious or outrageous discrimination 4 independent of the employer's state of mind. That's Kolstad at 5 535. The terms malice or reckless indifference pertain to the 6 employer's knowledge that it may be acting in violation of 7 federal law, not its awareness that it is engaging in 8 discrimination. That's also a quote from Kolstad at 535. 9 A plaintiff may satisfy this element by demonstrating 10 that the relevant individuals knew of or were familiar with 11 antidiscrimination laws. See Bruso v. United Airlines, 239 12 F.3d 848, 858 (7th Cir. 2001). A plaintiff may also establish 13 that the defendant acted with reckless disregard for her 14 federally-protected rights by showing that the defendant's 15 employees lied, either to the plaintiff or to the jury, in 16 order to cover up their discriminatory actions. See Passantino 17 v. Johnson & Johnson Consumer Products, 212 F.3d 493, 516 (9th 18 Cir. 2000 (stating that the jury could have concluded that the 19 defendants did not reasonably believe their conduct was lawful 20 because they lied to the plaintiff and at trial in order to 21 conceal their discriminatory actions against her). 22 Second, once a plaintiff has established that 23 defendants, or its employees, acted in reckless disregard of 24 her federally protected rights, she must establish a basis for 25 imputing liability to the employer. See Kolstad 527 U.S. at SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1681 544MZUB1 1 539. The plaintiff must demonstrate that the employees who 2 discriminated against her were managerial agents acting within 3 the scope of their employment. Also Kolstad at 543. 4 Even if the plaintiff establishes that the employer's 5 managerial agents recklessly disregarded her federally 6 protected rights while acting within the scope of their 7 employment, the employer may avoid liability for punitive 8 damages if it can show that it engaged in good-faith efforts to 9 implement an antidiscrimination policy. Same case, Kolstad. 10 545. This good-faith defense requires the employer to 11 establish both that it had an antidiscrimination policy in 12 place and that it made a good-faith effort to enforce it. See 13 Zimmermann v. Associates First Capital, 251 F.3d 376, 385 (2d 14 Cir. 2001). 15 Here, Matthew Chapin, plaintiff's direct supervisor 16 and a manager at UBS, testified that he was aware of the Title 17 VII prohibitions against discrimination and retaliation at all 18 relevant times. Therefore, the first two Kolstad requirements 19 are met. I might add that other managers above Chapin made 20 similar admissions. Defendants' attempt to rely on advice of 21 counsel defense is unavailing. Defendants cites two cases in 22 support of such a defense: Weissman v. Dawn Joy Fashions, 214 23 F.3d 224 (2d Cir. 2000.) and Farias v. Instructional Systems, 24 Inc., 259 F.3d 91 (2d Cir. 2001). However, in Weissman, the 25 plaintiff agreed with the district court that defendant's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1682 544MZUB1 1 alleged retaliation would not support the imposition of 2 punitive damages because defendant contacted counsel prior to 3 severing contact with the plaintiff. See 214 F.3d at 236. 4 Here, there is no such agreement on plaintiff's part. 5 Furthermore, in Farias, the Second Circuit stated that "action 6 taken pursuant to advice that the action is consistent with the 7 law is insufficient to support an award of punitive damages 8 under Kolstad. See 259 F.3d 102. Here, there is evidence that 9 counsel advised UBS that it would be lawful to terminate 10 plaintiff. In their brief, defendants state: "The evidence in 11 this case shows that before action was taken to terminate 12 Ms. Zubulake, the executives communicated with three human 13 resources professionals as well as counsel." See defendant's 14 brief in support of motion to dismiss punitive damages at 2 and 15 3. 16 However, in Farias, there was no evidence that the 17 defendant retaliated against the plaintiff with the conscious 18 knowledge that it was violating the law. See 259 F.3d 91. The 19 issue in Farias, and the resulting legal advice, was clear cut: 20 Plaintiff was not entitled to a severance package because she 21 had already lodged a complaint against the company. Farias is 22 therefore distinguishable. 23 In addition, here we do not know what advice was given 24 by attorneys to UBS because there was no discovery taken on 25 that issue. Moreover, there is the argument that counsel was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1683 544MZUB1 1 consulted in order to cover up a decision that had already been 2 made given the timing of the Orgill and Tong e-mails. I also 3 agree with plaintiff that the advice of counsel defense cannot 4 be used as a sword, if it is also used as a shield. When 5 plaintiff sought discovery regarding communications with 6 counsel, defendants asserted the attorney-client privilege to 7 prevent that discovery. Given that plaintiff does not know 8 what was disclosed to counsel, and therefore the basis of 9 counsel's advice, defendants cannot now insulate themselves 10 because they sought advice from counsel. 11 In any event, there is no evidence that counsel was 12 consulted by Chapin before he allegedly discriminated against 13 plaintiff based on her gender prior to her termination. 14 Furthermore, under Passantino, the issue of punitive damages 15 should be given to the jury because of the very fact that UBS 16 employees intentionally deleted e-mails in contemplation of 17 this litigation. Such acts surely indicate that UBS employees 18 were aware that their actions may be in violation of federal 19 and state discrimination laws. 20 Finally, there is the good-faith defense described in 21 Kolstad. With regard to the enforcement of the UBS's 22 antidiscrimination policy, I note that Joshua Varsano testified 23 that he did nothing in response to plaintiff's complaints of 24 gender discrimination. However, the jury will be instructed as 25 to this defense, and whether UBS can prevail on this defense is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1684 544MZUB1 1 a matter that will be left to the jury's discretion. 2 Those are the rulings on the motion. 3 We should spend two minutes on procedure if we have to 4 get to phase 2 of this trial which would be punitive damages. 5 If we have to get there, remind me what I said you could do. I 6 don't remember. 7 MR. HUBBARD: Your Honor, the only thing missing from 8 the evidentiary package, I think, would be some evidence of 9 either the net worth or the financial condition of the 10 defendant. 11 THE COURT: Which I was hoping you could stipulate to. 12 If we had to do it, it would be reading two or three sentences 13 and then I said there would be a brief summation on the issue. 14 I don't know if anybody wanted to think about that possibility 15 over the weekend. How long would that be? 16 MS. PLEVAN: I would think 15 minutes. 17 THE COURT: Each? I'd like to keep it to that. It is 18 not a second go. Could you live with that? 19 MR. HUBBARD: Yes, your Honor. 20 THE COURT: If that moment should come, 15 minutes 21 each in the same order. Why don't you talk briefly about some 22 kind of a stipulation that might have to be reached. 23 I know this puts you under terrible pressure on 24 eating. You probably were not allowed to bring cell phones, 25 either side. If you write a note, I will sign it that will SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1685 544MZUB1 1 allow to you keep your cell phones with you now when we are in 2 deliberations. 3 In the meantime, I did tell the jury 1:30 if they were 4 done eating. If you could try to be back by 1:35 or so, we may 5 be able to get started. I know we are all anxious to get this 6 case to the jury. 7 Did I distribute the punitive damages charge to you 8 previously? 9 MR. HUBBARD: I don't think so. 10 THE COURT: Neither side thinks. 11 (Luncheon recess) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1686 544tzub2 Charge 1 AFTERNOON SESSION 2 (1:40 p.m.) 3 (Jury present) 4 THE COURT: You'll see on your chairs that there's a 5 copy of my jury charge and a verdict sheet. I ask you not to 6 pay attention yet to the verdict sheet. 7 With respect to the charge, the reason I give you a 8 written copy of my charge is over many years of doing this I 9 really believe some people learn better by being able to see it 10 in writing not having to sit there and hear it, and others 11 prefer to sit up and listen and they don't want to follow 12 along. You're welcome to do both or neither or either, what's 13 whatever suits you. It's your charge, you can write on it. 14 It's yours to keep. You don't have to return it, so it's your 15 copy. 16 It's been pointed out to me at least one of the 17 attorneys received a copy where the table of contents wasn't 18 complete. The second page was missing. If it's missing from 19 yours, either the second or third page, I will have a copy made 20 with the table of contents. 21 Anybody missing the second page? Two people. No, 22 almost all of you. 23 Anybody missing the third page of the table of 24 contents? 25 All right. Let me try to get that to you right away. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1687 544tzub2 Charge 1 Of course, please don't read it ahead of me, that you can't do. 2 Luckily the copy that I got by accident has all three 3 pages of the table of contents, so I can give it to my clerk 4 and have copies made. 5 All right. With that, I'm going to begin the reading 6 and I'll give you a table of contents and you'll have it later 7 to use. 8 Members of the jury, I want to thank you for your 9 patience and cooperation. You are about to enter into your 10 final duty, which is to decide the fact issues in this case. 11 Before you do that, I will instruct you on the law. Please pay 12 close attention to me. I will go as slowly as I can and I will 13 be as clear as possible. 14 You have now heard all of the evidence in the case as 15 well as the final arguments of the lawyers for the parties. My 16 duty at this point is to instruct you as to the law. It is 17 your duty to accept these instructions of law and apply them to 18 the facts as you determine them, just as it has been my duty to 19 preside over the trial and decide what testimony and evidence 20 is relevant under the law for your consideration. 21 On these legal matters, you must take the law as I 22 give it to you. If any attorney has stated a legal principle 23 different from any that I state to you in my instructions, it 24 is my instructions that you must follow. 25 You should not single out any instruction as alone SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1688 544tzub2 Charge 1 stating the law, but you should consider my instructions as a 2 whole when you retire to deliberate in the jury room. You of 3 course have received a copy of the instructions to take into 4 the jury room. Should any of you be concerned by the wisdom of 5 any rule that I may state, regardless of any opinion that you 6 may have about what the law may be or ought to be, it would 7 violate your sworn duty to base a verdict upon any other view 8 of the law than the one that I give you. 9 Your role, as I have said, is to consider and decide 10 the fact issues that are in this case. You, the members of the 11 jury, are the sole and exclusive judges of the facts. You pass 12 upon the evidence, you determine the credibility or 13 believability of the witnesses, you resolve whatever conflicts 14 may be in the testimony, you draw whatever reasonable 15 inferences and conclusions you decide to draw from the facts as 16 you determine them and you determine the weight of the 17 evidence. 18 In determining the facts you must rely upon your own 19 recollection of the evidence. What the lawyers have said in 20 their opening statements, in their closing arguments, in their 21 objections or in their questions is not evidence. Nor should 22 anything that I may have said during the trial substitute for 23 your own independent recollection. What I say is not evidence, 24 it is your own independent recollection of the evidence that 25 controls. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1689 544tzub2 Charge 1 Similarly, remember a question that is put to a 2 witness is never evidence, only the answer is evidence. 3 However, you may not consider any answer that I directed you to 4 disregard or that I directed struck from the record. If there 5 is any difference or contradiction in what any lawyer has said 6 and what you decide the evidence shows or between anything I 7 may have said and what you decide the evidence showed, it is 8 your view of the evidence, not the lawyer's and not mine, that 9 controls. 10 Because you are the sole and exclusive judges of the 11 facts, I do not mean to indicate any opinion as to what your 12 verdict should be. The rulings I have made during the trial 13 are not any indication of my views of what your decision should 14 be as to whether the plaintiff or the defendant have presented 15 the more convincing evidence. 16 I also ask you to draw no inference from the fact that 17 upon occasion I ask questions of certain witnesses. These 18 questions were intended only for clarification or to move 19 things along. They were not intended to suggest any opinion on 20 my part as to the verdict you should render or whether any of 21 the witnesses may have been more credible or less credible than 22 any of the other witnesses. It is important that you 23 understand that I wish to convey no opinion as to the verdict 24 you should render in this case, and that if I did convey such 25 an opinion, you would not be obliged in any way to follow it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1690 544tzub2 Charge 1 And that is why I gave you the instruction earlier this morning 2 regarding the testimony of the last witness. 3 In determining the facts, you must weigh and consider 4 the evidence without regard to sympathy, prejudice or passion 5 for or against any party. I will later discuss with you how to 6 pass on the credibility or believability of the witnesses. 7 Now as this is a civil case, the plaintiff, Laura 8 Zubulake, has the burden of proving her claims and damages by a 9 preponderance of the evidence. This means that plaintiff has 10 the burden of proving by a preponderance of the evidence each 11 and every disputed element of each of her claims and the 12 damages resulting therefrom. If you find that the plaintiff 13 has failed to establish a claim by a preponderance of the 14 evidence, you must decide against her on that claim. 15 Some of you have heard of proof beyond a reasonable 16 doubt, which is the proper standard of proof for a criminal 17 trial. However, a plaintiff in a civil case does not have to 18 satisfy that requirement, and therefore you should put it out 19 of your mind. 20 To establish a fact by a preponderance of the evidence 21 means to prove that the fact is more likely true than not true. 22 A preponderance of the evidence means the greater weight of the 23 evidence. It does not mean the greater number of witnesses or 24 the greater length of time taken by either side. The phrase 25 refers to the quality of the evidence, that is, its convincing SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1691 544tzub2 Charge 1 quality, the weight and the effect that it has on your minds. 2 The law requires that in order for plaintiff to prevail on a 3 claim, the evidence that supports her claim must appeal to you 4 as more nearly representing what took place than the evidence 5 opposed to her claim. If it does not, or if it weighs so 6 evenly that you are unable to say that there is a preponderance 7 on either side, then you must decide the question in favor of 8 the defendants. It is only if the evidence favoring the 9 plaintiff's claim outweighs the evidence opposed to it that you 10 can find in favor of the plaintiff. 11 In determining whether any fact in issue has been 12 proved by a preponderance of the evidence, you may, unless 13 otherwise instructed, consider the testimony of all witnesses, 14 regardless of who may have called them, and all the exhibits 15 received in evidence, regardless of who may have admitted them. 16 The evidence in which you are to decide what the facts 17 are consists of, first, the sworn testimony of witnesses on 18 both direct and cross-examination regardless of who called the 19 witnesses, two, the documents and exhibits that have been 20 received in evidence, three, any facts to which the lawyers 21 have all agreed or stipulated, and four, any fact which I have 22 instructed you to accept as true. 23 By contrast, the following are not evidence: 24 Arguments and statements by lawyers are not evidence. The 25 lawyers are not witnesses. What they have said in their SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1692 544tzub2 Charge 1 opening statements, closing arguments and at other times is 2 intended to help you interpret the evidence, but it's not 3 evidence. If the facts as you remember them differ from the 4 way the lawyers have stated them, your memory of the facts 5 controls. 6 Questions of lawyers are not evidence. It is the 7 witness's answers that are evidence. Similarly, objections are 8 not evidence. Lawyers have a duty to their clients to object 9 when they believe a question is improper under the rules of 10 evidence. You should not be influenced by the objection or by 11 it the Court's ruling on it. 12 Testimony that has been excluded or stricken or that 13 you have been instructed to disregard is not evidence and must 14 not be considered. In addition, I have allowed some testimony 15 or exhibits only for a limited purpose and you must consider 16 them only for that limited purpose. 17 Anything that you may have seen or heard when the 18 Court was not in session is not evidence. You are to decide 19 the case solely on the evidence received during the trial. 20 To constitute evidence, exhibits must be received in 21 evidence. If an exhibit was marked for identification but not 22 admitted, then it's not evidence, nor are materials that were 23 used solely to refresh a witness's recollection. 24 Finally, any statements which I may have made, 25 including statements concerning the quality of the evidence, do SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1693 544tzub2 Charge 1 not constitute evidence. 2 Now there are two kind of evidence, direct and 3 circumstantial. Direct evidence is direct proof of a fact, 4 such as testimony by a witness, about what that witness 5 personally experienced through his own senses, something seen, 6 felt, touched, heard or tasted. Direct evidence may also be in 7 the form of an exhibit where the facts to be proven -- sorry, 8 where the fact to be proven is its present existence or 9 condition. 10 Circumstantial evidence is evidence which tends to 11 prove a disputed fact by preponderance of other facts. There 12 is a simple example of circumstantial evidence which is often 13 used in this courthouse. Assume when you came into the 14 courthouse to morning, the sun was shining and it was a nice 15 day. Assume that the courtroom shades were drawn and you 16 couldn't look outside. Now as you were sitting here, someone 17 walked in with an umbrella that was dripping wet, then a few 18 minutes later another person entered with a wet umbrella. Now 19 you can't look outside the courtroom and you cannot see whether 20 or not it is raining, so you do not have direct evidence of 21 that fact. But on the combination of facts which I have asked 22 to you assume, it would be reasonable and logical for you to 23 conclude that it had been raining. 24 That is all there is to circumstantial evidence. You 25 infer on the basis of reason and experience and common sense SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1694 544tzub2 Charge 1 from one established fact the existence or non-existence of 2 some other fact. 3 Circumstantial evidence is of no less value than 4 direct evidence. The law makes no distinction between direct 5 evidence and circumstantial evidence but simply requires that 6 your verdict must be based on a preponderance of all the 7 evidence presented. 8 It is for you to decide whether a fact has been proven 9 by circumstantial evidence. In making that decision, you must 10 consider all the evidence related to that fact in light of 11 reason, common sense, and your own experience. 12 During the trial you may have heard the attorneys use 13 the term inference, and in their arguments they may have asked 14 you to infer on the basis of your reason, experience and common 15 sense from one or more proven facts the existence of some other 16 facts. 17 An inference is not a suspicion or a guess, it is a 18 logical conclusion that a disputed fact exits that we reach in 19 light of another fact which has been shown to exit. There are 20 times when different inferences may be drawn from facts, 21 whether proved by direct or circumstantial evidence. It is for 22 you, and you alone, to decide what inferences you will draw. 23 The process of drawing inferences from facts in 24 evidence is not a matter of guesswork or speculation. An 25 inference is a deduction or conclusion which you, the jury, are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1695 544tzub2 Charge 1 permitted to draw, but not required to draw, from the facts 2 which have been established by either direct or circumstantial 3 evidence. In drawing inferences you should exercise your 4 common sense. 5 So, while you are considering the evidence presented 6 to you, you are permitted to draw, from the facts which you 7 find to be proven, such reasonable inferences as would be 8 justified in light of your experience. 9 Keep in mind that the mere existence of an inference 10 against the defendants does not relieve the plaintiff of the 11 burden of establishing her case by a preponderance of the 12 evidence. In order for the plaintiff to obtain a verdict in 13 her favor, you must still believe from the credibility evidence 14 that the plaintiff has sustained the burden cast upon her. If 15 plaintiff has failed, then your verdict must be for the 16 defendants. If you should find that all the evidence is evenly 17 balanced, then the plaintiff has not sustained her burden of 18 proof and your verdict must be for the defendants. 19 If, and only if, you determine, after carefully 20 weighing all the evidence, that the facts favor plaintiff by 21 the standard I have articulated, then plaintiff has met her 22 burden of proof. 23 The plaintiff and the defendant have stipulated to 24 certain facts. A stipulation of fact is an agreement among the 25 parties that a certain fact is true. You must regard such SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1696 544tzub2 Charge 1 agreed upon or stipulated facts as true. 2 Some of the testimony before you is in the form of 3 depositions, which have been received in evidence. A 4 deposition is simply a procedure where the attorneys for one 5 side before trial question a witness or adversary party under 6 oath before a court stenographer. You may consider and 7 evaluate the testimony of a witness given at a deposition 8 according to the same standards you use to evaluate the 9 testimony of a witness given at trial. 10 The testimony of a single witness may be sufficient to 11 prove any fact, even if a greater number of witnesses may have 12 testified to the contrary, if after considering all the other 13 evidence you believe that single witness. However, your 14 verdict should be based on all of the evidence in the case. 15 The law does not require any party to call as 16 witnesses all persons who may have been present at any time or 17 place involved in the case or who may appear to have some 18 knowledge of the matters at issue in this trial. In fact, the 19 Court at times limits the numbers of witnesses a party may 20 call. Nor does the law require any party to produce as 21 exhibits all papers and things mentioned in the evidence in the 22 case. 23 If you find that a witness was equally available to 24 both sides, you may infer that the testimony of the uncalled 25 witness might have been unfavorable to the plaintiff or to the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1697 544tzub2 Charge 1 defendants other both. Witnesses whose deposition testimony 2 may be presented to the Court in lieu of live testimony are 3 available and the failure to call them does not warrant an 4 adverse inference against the party that opted not to call the 5 witness. You should, however, remember that there is no duty 6 on either side to call a witness whose testimony would merely 7 repeat or duplicate other evidence. Again, your decision to 8 draw or not draw any inference should be based on all of the 9 facts and circumstances in the case. 10 You have had the opportunity to observe all the 11 witnesses. It is now your job to decide how believable each 12 witness was in her or her testimony. You are the sole judges 13 of the credibility of each witness and of the importance of 14 that testimony. 15 How do you determine where the truth lies? You should 16 use all of the tests for truthfulness that you would use in 17 determining matters of importance in your everyday life. You 18 should consider any bias or hostility that a witness may have 19 shown for or against any party as well as any interest the 20 witness has in the outcome of the case. It is your duty to 21 consider whether the witness has permitted any such bias or 22 interest to color his or her testimony. 23 You should consider the opportunity the witness had to 24 see, hear and know the things about which they testified, the 25 accuracy of their memory, their candor or lack of candor, their SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1698 544tzub2 Charge 1 intelligence, the reasonableness and probability of their 2 testimony and its consistency or lack of consistency and the 3 corroboration or lack of corroboration with other believable 4 testimony. You watched the witnesses testify. Everything a 5 witness said or did on the witness stand counts in your 6 determination. How did the witness appear? What was the 7 witness's demeanor while testifying? Often it is not what 8 people say but how they say it that moves us. 9 In deciding whether to believe a witness, keep in mind 10 that people sometimes forget things. You need to consider, 11 therefore, whether the witness's testimony reflects an innocent 12 lapse of memory or an intentional falsehood, and that may 13 depend on whether it has to do with an important fact or with 14 only a small detail. 15 If you find that any witness has willfully testified 16 falsely as to any material fact, that is, as to an important 17 matter, the law permits you to disregard completely the entire 18 testimony of that witness upon the principle that one who 19 testifies falsely about one material fact is likely to testify 20 falsely about everything. You are not required, however, to 21 consider such a witness as totally unworthy of belief. You may 22 accept so much of the witness's testimony as you deem true and 23 disregard what you feel is false. As the sole judges of the 24 facts, you must decide which of the witnesses you will believe, 25 what portion of their testimony you accept, and what weight you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1699 544tzub2 Charge 1 will give to it. 2 You have heard evidence that at some earlier time a 3 witness has said or done something which counsel argues is 4 inconsistent with the witness's trial testimony. However, a 5 prior inconsistent statement is not evidence you should 6 consider in determining whether plaintiff has proved her case. 7 The prior inconsistent statement was placed before you solely 8 for the purpose of attacking the credibility of the witness. 9 If you find that the witness made an earlier statement that 10 conflicts with his or her trial testimony, you may consider 11 that fact in deciding how much of his or her trial testimony, 12 if any, to believe. 13 In making this determination, you may consider whether 14 there was in fact any inconsistency; whether the witness 15 purposely made a false statement or whether it was an innocent 16 mistake; whether the inconsistency concerns an important fact, 17 or whether it had to do with a small detail; whether the 18 witness has an explanation for inconsistency, and whether that 19 explanation appeals to your common sense. 20 It is your duty, based upon all the evidence and your 21 own good judgment, to decide how much weight to give to the 22 inconsistency. 23 Two weeks ago I read an instruction to you at the 24 beginning of the trial that was slight different than what I am 25 about to say now, but what I instruct you in this charge must SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1700 544tzub2 Charge 1 control your deliberations. I have already instructed you that 2 the Court has found that several UBS employees failed to 3 preserve some of their e-mails after they had been repeatedly 4 instructed by UBS counsel beginning in August 2001, and 5 thereafter, to preserve their e-mails. Some of those e-mails 6 were eventually recovered from back-up tapes and produced to 7 plaintiff. Others could not be recovered because back-up tapes 8 no longer existed for certain months or portions of certain 9 months. No one can ever know what would have been on those 10 back-up tapes and whether relevant e-mails would have been 11 recovered and produced. The fact that some UBS employees 12 failed to preserve their e-mails after being instructed to do 13 so, and that such e-mails cannot now be produced, is sufficient 14 circumstantial evidence from which you are permitted, but not 15 required, to conclude that the missing evidence was unfavorable 16 to UBS. 17 Let me explain this in different words. If you find 18 that UBS could have produced this evidence, the evidence was 19 within its control, and the evidence would have been material 20 in deciding facts in dispute in this case, you are permitted, 21 but not required, to infer that the evidence would have been 22 unfavorable to UBS. 23 Now in deciding whether to draw this inference you 24 should consider whether the evidence that was not produced 25 would merely have been cumulative of other evidence already SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1701 544tzub2 Charge 1 before you. You may also consider whether the failure of 2 certain UBS employees to preserve their e-mails after being 3 instructed to do so prejudiced the plaintiff by affecting her 4 ability to prove her case. Finally, I remind you that the fact 5 that these e-mails were no longer available, because they were 6 not preserved by some employees after instruction by UBS 7 counsel to preserve them, can be sufficient to permit you to 8 conclude that the miscellaneous evidence is favorable to the 9 plaintiff. 10 Now I'm going to turn to the governing law. Plaintiff 11 has brought sex discrimination and retaliation claims pursuant 12 to Title 7 of the Civil Rights Act of 1964, which I'll refer to 13 as Title 7, the New York State Human Rights Law and the New 14 York City Human Rights law. Discrimination and retaliation 15 claims arising under the New York State Human Rights Law and 16 the New York City Human Rights Law are analyzed in the same 17 manner and are subject to the same burdens of proof as 18 discrimination and retaliation claims under Title 7. 19 Therefore, the instructions I am about to give you pertaining 20 to plaintiff's federal sex discrimination and retaliatory 21 discharge claims also apply to the claims she brought under 22 state and city law. 23 Under the relevant provisions of Title 7, the New York 24 State Human Rights Law and the New York City Human Rights Law, 25 it is an unlawful employment practice for an employer to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1702 544tzub2 Charge 1 intentionally discharge or otherwise discriminate against any 2 person with respect to compensation, terms, conditions, or 3 privileges of employment because of such person's sex. It is 4 also unlawful employment practice for an employer to 5 intentionally discharge or discriminate against an individual 6 because she has opposed any unlawful employment practice or 7 filed a complaint under any of these statutes. 8 Plaintiff must show that UBS intentionally 9 discriminated and/or retaliated against her. Plaintiff is not 10 required, however, to produce direct evidence of intentional 11 discrimination or retaliation. Intentional discrimination and 12 retaliation may be proved through circumstantial evidence and 13 may be inferred from the existence of other facts. 14 Plaintiff has asserted a claim of intentional sex 15 discrimination with respect to her termination. Plaintiff has 16 not asserted claims of sexual harassment, a hostile work 17 environment or sexual favoritism. Nor is she claiming 18 discrimination based on race, national origin or age. 19 In order for plaintiff to establish her claim of sex 20 discrimination against UBS, she has the burden of proving, by a 21 preponderance of the evidence, that UBS's actions were 22 motivated by her gender. In other words, plaintiff must 23 establish that UBS intentionally engaged in an unlawful 24 employment practice. 25 An unlawful employment practice is established if SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1703 544tzub2 Charge 1 plaintiff demonstrates that sex was a determinative factor for 2 the employment practice, even though other factors may have 3 also motivated the practice. What is a determinative factor? 4 A determinative factor is one that actually played a role in 5 the employer's decision making process and had a determinative 6 influence on the outcome. 7 The mere fact that plaintiff is a woman and was 8 terminated is not sufficient, in and of itself, to establish 9 her claim under the law. Nor is plaintiff's own subjective 10 belief that she was discriminated against sufficient to meet 11 her burden of proof of sex discrimination. The burden of 12 proving intentional discrimination remains with the plaintiff 13 and it is up to her to prove that her sex was one of the 14 reasons for UBS's decision to terminate her employment. If 15 plaintiff fails to show that sex was a determinative factor for 16 her termination, you must find in favor of UBS. If you find, 17 however, that plaintiff has proven that her gender was a 18 determinative factor in her termination, you must find in favor 19 of plaintiff. 20 Plaintiff claims that UBS intentionally retaliated 21 against her by terminating her employment because she opposed 22 an unlawful employment practice by filing a charge of 23 discrimination with the Equal Employment Opportunity 24 Commission, which we call the EEOC. UBS, in turn, denies that 25 it retaliated in any way against plaintiff and asserts that it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1704 544tzub2 Charge 1 took this action for legitimate non-retaliatory reasons, namely 2 because of plaintiff's performance problems. 3 In order to prove her retaliation claim, plaintiff 4 must prove first that she participated in a protected activity; 5 second, that UBS knew of the protected activity; third, that 6 UBS took an adverse employment action against her; and finally, 7 that plaintiff's participation in the protected activity was a 8 determinative factor in the adverse employment action taken by 9 UBS against plaintiff, that is, there must be a causal 10 connection between the protected activity and UBS's action. 11 Now I instruct you as a matter of law that plaintiff's 12 termination was an adverse employment action. I also instruct 13 you as a matter of law that plaintiff was engaged in a 14 protected activity in complaining to the EEOC. 15 Therefore, you must decide the following: First, 16 whether the relevant decision makers knew of plaintiff's 17 protected activity when they decided to terminate her 18 employment, and second, whether the protected activity of 19 complaining to the EEOC was a determinative factor in UBS's 20 decision to terminate plaintiff's employment. 21 What is a determinative factor? A determinative 22 factor is one that actually played a role in the employer's 23 decision making process and had a determinative influence on 24 the outcome. 25 The mere fact that plaintiff filed a charge of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1705 544tzub2 Charge 1 discrimination with the EEOC and was subsequently terminated is 2 not sufficient, in and of itself, to establish her retaliation 3 claim under the law. Nor is plaintiff's own subjective belief 4 that she was retaliated against sufficient to meet her burden 5 of proof. 6 The burden is always on the plaintiff to prove, by a 7 preponderance of the evidence, that defendants intentionally 8 retaliated against her because she complained to the EEOC. 9 Therefore, it is not enough to determine that plaintiff 10 complained about treatment by UBS management; you must also 11 determine that plaintiff's complaint to the EEOC was a 12 determinative factor in the decision to terminate her. If 13 plaintiff failed to meet her burden of proof on this issue, you 14 must find for UBS. If plaintiff succeeds on meeting her burden 15 on this issue, you must find in favor of plaintiff. 16 In considering whether plaintiff has met her burden of 17 establishing that she was intentionally discriminated against 18 because of her sex, you should keep in mind that UBS was 19 entitled to make any policy or business judgments it chose, 20 however unwise, misguided or unreasonable they may appear to 21 you, so long as UBS was not basing its judgment on plaintiff's 22 sex or the fact that she filed a charge of discrimination with 23 the EEOC. You may not return a verdict for plaintiff just 24 because you might disagree with the defendant's decision to 25 terminate her or believe it to be harsh or unreasonable. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1706 544tzub2 Charge 1 I turn now to damages. Now that I have completed the 2 instruction on the law underlying plaintiff's claims, I will 3 give you instructions on awarding damages. The fact that I am 4 giving you instructions on the subject of damages, however, 5 should not be construed by you as any indication that I believe 6 you should find for the plaintiff. I instruct you on damages 7 only so that if in your deliberations you find that the 8 plaintiff is entitled to recover, you would have been 9 instructed on the law of damages. 10 I have said that you must award the plaintiff such sum 11 of money as you believe will fairly and justly compensate her 12 for any injury you believe she actually sustained as a direct 13 result of defendant's conduct. You must remember in 14 calculating damages that the plaintiff is entitled to be 15 compensated only for injuries she actually suffered. You 16 should, however, compensate plaintiff for the same injury twice 17 simply because defendants may have violated her rights under 18 both the federal and state and city statutes. 19 If you should find in favor of plaintiff, you must 20 determine an amount that is fair compensation for her damages. 21 These damages are known as compensatory damages. The purpose 22 of the law of damages is to award, as far as possible, just and 23 fair compensation for the loss, if any, which results from 24 defendant's unlawful conduct. You must award the plaintiff 25 sufficient damages to compensate her for any injury proximately SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1707 544tzub2 Charge 1 caused by defendant's conduct. 2 You may award compensatory damages only for injuries 3 that the plaintiff proves were caused by the defendant's 4 wrongful conduct. You may not award damages based upon 5 speculation. The damages that you award must be fair 6 compensation, no more, no less. 7 The purpose of the law is make the plaintiff whole, to 8 put her in the same position as she would have been in had 9 there been no discrimination. 10 I remind you that you may award compensation damages 11 only for the injuries that the plaintiff proved were caused by 12 the defendant's wrongful conduct. The damages that you award 13 must be fair and reasonable, neither inadequate nor excessive. 14 You should not award compensation damages for speculative 15 injuries but only for injuries that the plaintiff actually 16 suffered. 17 In awarding compensatory damages you should be guided 18 by dispassionate common sense. You must use sound discretion 19 if fixing an award of damages, drawing reasonable inferences 20 from the facts in evidence. You may not award damages based on 21 sympathy, speculation or guesswork. On the other hand, the law 22 does not require that plaintiff prove the amount of her losses 23 with mathematical precision, but only with as much definiteness 24 and accuracy as circumstances permit. 25 In all instances you are to use sound discretion in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1708 544tzub2 Charge 1 fixing an award of damages, drawing reasonable inferences where 2 you deem appropriate from the facts and circumstances in 3 evidence. 4 So I begin with that. If you find the plaintiff has 5 met the burden of proving by preponderance of the evidence that 6 the defendants discriminated and/or retaliated against 7 plaintiff in terminating her employment, you may award her what 8 has been known as back pay. Back pay is comprised of salary, 9 bonus and employment benefits plaintiff would have earned had 10 she remained in UBS's employment. 11 It is at all times plaintiff's burden to prove, first, 12 that she is entitled to damages, and second, the amount of such 13 damages. In the event that you find that plaintiff is entitled 14 to an award of back pay, your award may cover a period 15 beginning no earlier than October 23, 2001, the date of 16 plaintiff's termination, and ending no later than the date of 17 your verdict. 18 Now a plaintiff must make a reasonable effort to 19 minimize or reduce her damages for loss of compensation by 20 seeking comparable alternative employment. This is called 21 mitigation of damages. While plaintiff must seek a position 22 substantially equivalent to her previous position, she need not 23 go into another line of work, accept a demotion or take a 24 demeaning position. It is defendant's burden to prove, by a 25 preponderance of the evidence, that plaintiff failed to take SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1709 544tzub2 Charge 1 reasonable steps to diminish the extent of the injuries she 2 suffered. 3 (Continued on next page) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1710 544MZUB3 Charge 1 THE COURT: Therefore, if you determine that plaintiff 2 is entitled to damages, you must reduce those damages by any 3 amount that UBS proves by a preponderance of the evidence that 4 plaintiff actually earned or could have earned by reasonable 5 effort during the period from her discharge until the date of 6 your verdict. 7 If you determine that plaintiff made a reasonable 8 effort to obtain employment of a like nature, you should find 9 that she satisfied her obligation to mitigate her damages and 10 you should not limit her damages in any way. On the other 11 hand, if you determine that plaintiff did not make a reasonable 12 effort to obtain employment of a like nature, you should find 13 that she has not satisfied her obligation to mitigate her 14 damages, and you must reduce her damages by the amount of 15 compensation she could have earned had she made such an effort. 16 You must not compensate plaintiff for any portion of her loss 17 that resulted from her failure to make reasonable efforts to 18 reduce her damages by finding comparable employment. 19 Plaintiff also seeks front pay. Under New York law, 20 the issue of whether a plaintiff is entitled to an award of 21 front pay is decided by the jury. Front pay is designed to 22 ensure that victims of discrimination are made whole and should 23 be awarded only if you conclude that, first, plaintiff has no 24 reasonable prospect of obtaining comparable employment and, 25 second, calculation of the award is not unduly speculative. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1711 544MZUB3 Charge 1 Plaintiff has the burden of proof in determining that front pay 2 is warranted and, if so, the amount of front pay. 3 In determining the amount of front pay, you must 4 calculate a monetary amount equal to the value of wages and 5 benefits that plaintiff would have earned had her employment at 6 UBS not been terminated for the period from the date of your 7 verdict to the date plaintiff would have voluntarily resigned 8 from UBS or obtained comparable employment. As I told you 9 before, plaintiff always has a duty to mitigate her damages and 10 that defendants have the burden of proving that she will not 11 fulfill her duty to seek comparable employment in the future. 12 Federal law provides for a separate award of 13 attorneys' fees when a party prevails in a case brought 14 pursuant to Title VII. The award of attorneys' fees in such 15 circumstances is a matter to be determined by the Court. 16 Accordingly, if you award any damages to plaintiff under Title 17 VII, you should not take into consideration the fees plaintiff 18 may have to pay her attorneys. 19 Now, ladies and gentlemen, you are about to go into 20 the jury room and begin your deliberations. All of the 21 exhibits that have been received in evidence here will be given 22 to you at the start of the deliberations. If you want any of 23 the testimony read back, you may request that. Please remember 24 that when you request testimony, the lawyers must agree on what 25 portions of testimony may be called for and, if they disagree, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1712 544MZUB3 Charge 1 I must resolve those disagreements. And that can be a 2 time-consuming process. So please try to be as specific as you 3 possibly can in requesting portions of the testimony. 4 Your requests for testimony -- in fact, any 5 communication with the Court -- should be made to me in 6 writing, signed by your foreperson with the time indicated, and 7 given to one of the marshals in an envelope. In any event, do 8 not tell me or anyone else how the jury stands on any issue 9 until after a verdict is reached. 10 Here I am going to go off the script for a minute. 11 Whoever is writing that note, if you want testimony and you 12 want to save time, just try to pinpoint exactly what you want, 13 like, we would like to hear the testimony of so and so with 14 respect to such and such. As close as you can describe it, we 15 will be able to find it fastest. 16 The most important part of this case is the part that 17 you as jurors are now about to play as you deliberate on the 18 issues of fact. It is for you, and you alone, to decide 19 whether plaintiff has sustained her burden of proof as I have 20 explained it to you with respect to each of her claims. If you 21 find that plaintiff has succeeded, you should return a verdict 22 in plaintiff's favor. If you find that plaintiff failed to 23 sustain her burden of proof on any element of her claims, you 24 should return a verdict in favor of defendants on that claim. 25 I know that you will try the issues that have been SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1713 544MZUB3 Charge 1 presented to you according to the oath that you have taken as 2 jurors. In that oath you promised that you would well and 3 truly try the issues joined in this case and a true verdict 4 render. 5 It is your duty as jurors to consult with one another 6 and to deliberate with a view to reaching an agreement. Each 7 of you must decide the case for yourself, but you should do so 8 only after a consideration of the case with your fellow jurors, 9 and you should not hesitate to change your opinion when 10 convinced that it is erroneous. Every juror should be heard. 11 No one juror should hold center stage in the jury room, and no 12 one juror should control or monopolize the deliberations. Your 13 verdict must be unanimous, but you are not bound to surrender 14 your honest convictions concerning the effect or weight of the 15 evidence for the mere purpose of returning a verdict or solely 16 because of the opinion of other jurors. Discuss and weigh your 17 respective opinions dispassionately, without regard to 18 sympathy, without regard to prejudice or favor of either party, 19 and adopt that conclusion which in your good conscience appears 20 to be in accordance with the truth. 21 Again, each of you must make your own decision about 22 the proper outcome of this case based on your consideration of 23 the evidence and your discussions with your fellow jurors. No 24 juror should surrender his or her conscientious beliefs solely 25 for the purpose of returning a unanimous verdict. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1714 544MZUB3 Charge 1 I remind you that any notes you may have taken during 2 trial are simply an aid to your memory. Because the notes may 3 be inaccurate or incomplete, they may not be given any greater 4 weight or influence than the recollections of other jurors 5 about the facts or the conclusions to be drawn from the facts 6 in determining the outcome of the case. Any difference between 7 a juror's recollection and a juror's notes should always be 8 settled by asking to have the court reporter's transcript on 9 that point read back to you. You must base your determination 10 of the facts, and ultimately, your verdict on the court record 11 rather than on any juror's notes. 12 When you retire, you should elect one member of the 13 jury as your foreperson. That person will preside over the 14 deliberations and speak for you here in open court. The 15 foreperson has no greater voice or authority than any other 16 juror. 17 The foreperson will send out notes and when the jury 18 has reached a verdict, he or she will notify the marshal that 19 the jury has reached a verdict. 20 I have given you a verdict form. The purpose of the 21 questions on the form is to help us -- the Court, the 22 attorneys, the plaintiff, and the defendants -- to understand 23 what your findings are. This verdict form contains a set of 24 questions and you must record the decision of the jury with 25 respect to each question. No inference is to be drawn from the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1715 544MZUB3 Charge 1 way the questions are worded as to what the answer should be. 2 The questions are not to be taken as any indication that I have 3 any opinion as to how they should be answered. I have no such 4 opinion. And, even if I did, it would not be binding you on 5 you. 6 Before the jury attempts to answer any question, you 7 should read the entire set and make sure that everybody 8 understands each question. Before you answer the questions, 9 you should deliberate in the jury room and discuss the evidence 10 that relates to the questions you must answer. When you have 11 considered the questions thoroughly, and the evidence that 12 relates to those questions, then record the answers to the 13 questions on the form. Before you can record an answer, all 14 jurors must agree to it; your answers must be unanimous. 15 Let's look at the form for a minute. The first one 16 says discrimination. Did plaintiff prove by a preponderance of 17 the credible evidence that UBS intentionally discriminated 18 against her by terminating her employment because of her 19 gender? Then it is yes or no. 20 Then it turns right away to retaliation. 2. Did 21 plaintiff prove by a preponderance of the credible evidence 22 that UBS terminated her employment in retaliation for her 23 filing a charge of discrimination with the EEOC? Yes or no. 24 If you answered no to both questions then you're done. 25 That means you will never go to the damages question. If you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1716 544MZUB3 Charge 1 answered yes to either, then you turn to the next page which 2 says damages. And it says: If you answered yes to questions 1 3 and/or 2, did plaintiff prove by a preponderance of the 4 credible evidence that she has suffered damages in the form of 5 lost compensation? You can say yes or no. 6 If you answered yes, what amount, if any, should be 7 awarded to plaintiff for the period since October 23, 2001 8 until today in order to compensate her for such lost 9 compensation? 10 Finally, what amount, if any, should be awarded to 11 plaintiff for the period from today to the date in the future 12 that you find plaintiff would have voluntarily resigned from 13 UBS or obtained comparable employment in order to compensate 14 her for future lost compensation? 15 When you're all done, the foreperson will sign it and 16 date it. 17 Now, if at any time you are not in agreement, you are 18 instructed that you are not to reveal the standing of the 19 jurors; that is, the split of the vote with respect to any 20 question to anyone, including the Court, at any time during 21 your deliberations. 22 Finally, I say this, not because I think it is 23 necessary, but because it is the custom in this courthouse. 24 You should treat each other with courtesy and respect during 25 your deliberation. After you have reached a verdict, your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1717 544MZUB3 Charge 1 foreperson will fill in the form that has been given to you, 2 sign and date it and advise the marshal outside your door that 3 you are ready to return to the courtroom. 4 I will stress that you should be in agreement with the 5 verdict which is announced in court. Once your verdict is 6 announced by the foreperson in open court and officially 7 recorded, it cannot ordinarily be revoked. 8 All litigants stand equal in this room. All litigants 9 stand equal before the bar of justice. Your duty is to decide 10 between these parties fairly and impartially, to see that 11 justice is done, all in accordance with your oath as jurors. 12 Members of the jury, I need your patience for just a 13 couple more moments. I have to meet with counsel and the 14 reporter at the side bar. I will ask you to remain patiently 15 in the box without speaking to each other. We will return in 16 just a moment to submit the case to you. Thank you for your 17 time and attention. 18 (Continued on next page) 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1718 544MZUB3 1 (At the side bar) 2 THE COURT: Anything further at this time? 3 MS. PLEVAN: Nothing further. 4 MR. HUBBARD: Nothing further from the plaintiff. 5 (In open court) 6 THE COURT: I am going to ask my clerk to swear the 7 marshal then. 8 (Marshal sworn) 9 THE COURT: Ladies and gentlemen, as I told you toward 10 the end of Thursday, you are now also in control of your own 11 schedule. You are going to begin your deliberations now, I 12 hope. It is only 2:30. 13 We are going to send in all of the exhibits and 14 evidence to you. That should just take a few minutes and then 15 at some time in the afternoon you'll write us a note and it 16 will say, we are ready to go home, or we have decided to 17 deliberate until. Whatever you want to tell us, you will tell 18 us by note. 19 With that, you may now discuss the case with each 20 other. Please begin your deliberations 21 (At 2:35 p.m., the jury commenced deliberations) 22 THE COURT: We need to do a couple of things. Very 23 first order of business is to get the exhibits into the jury 24 room. If you think you're done and there are no disputes, we 25 will give them to the marshal right now. Does that include SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1719 544MZUB3 1 Exhibit J400 from this morning? 2 MS. PALMIERI: Yes. 3 THE COURT: Just before we broke for lunch defense 4 counsel asked how we could put on the record a summary of the 5 e-mail traffic from yesterday. I thought about it and I think 6 the appropriate way is to simply summarize inasmuch or little 7 detail as you wish exactly what happened. So I will begin. 8 On Friday night, an e-mail arrived from defense 9 counsel asking me to give an oral instruction to the jury 10 regarding certain comments I made at the end of Ms. Kim's 11 testimony. And I think counsel for the defense at the end of 12 Thursday also handed up a case from New York regarding front 13 pay that they thought would be helpful to the Court in charging 14 with respect to front pay. 15 I saw the e-mail on Saturday, not on Friday night. I 16 saw it on Saturday and gave it a thought. And on Sunday I 17 wrote an e-mail to both parties proposing to give a charge that 18 was much like the charge proposed by the defendant with respect 19 to my comments at the close of Ms. Kim's testimony. 20 I also, I think, at some point on Sunday sent the 21 front pay charge that I intended to give, which tried to deal 22 with the concept of mitigation and how best to explain the 23 burdens of proof. 24 In response, I received an e-mail from plaintiff's 25 side that disputed some of the oral charge that I intended to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1720 544MZUB3 1 give at defendant's request, but in particular a sentence about 2 comparators and pointing out that I had already found that 3 neither Ms. Kim nor Ms. Yeh could be considered comparators in 4 my summary judgment opinion and, therefore, it wasn't wrong to 5 have said a somewhat offhand to the jury, this person isn't a 6 comparator. 7 In response to that, the defense side cited a Second 8 Circuit case which said that typically this is a question of 9 fact for the jury. Then I did some further research and found 10 a more recent Second Circuit case I think called Lizardo, 11 Second Circuit, 2001, something like that, that said, under 12 certain circumstances it is not for the jury. It can be done 13 as a matter of law. 14 So I returned to that and simply said to the jury, as 15 you all heard in my oral instruction today, that relevance was 16 certainly for them to determine. I hadn't meant to imply that 17 anything Ms. Kim said was or wasn't relevant. 18 And as far as comparators, neither she nor Ms. Yeh, I 19 think I said, had comparable employment in 2000 and 2001, held 20 a comparable position of that held by Ms. Zubulake in 2000 and 21 2001. I assume that defendant continues to object to that 22 charge and did not agree that I should have said anything about 23 comparators. 24 With respect to the front pay, again, I just sent the 25 charge out that I intended to give and that's that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1721 544MZUB3 1 I think that's a summary from my perspective pretty 2 much of what occurred over the weekend. Would either party 3 like to add to that summary? 4 MR. HUBBARD: Nothing for the plaintiff, your Honor. 5 MR. CHINN: Yes, your Honor. Just that the defendant 6 does maintain its objection with respect to the statement as to 7 Ms. Kim -- 8 THE COURT: Ms. Kim and Ms. Yeh. Neither held a 9 comparable position in 2000 and 2001, which is exactly what I 10 wrote in the summary judgment opinion. 11 MR. CHINN: As we pointed out in the e-mail 12 correspondence, that was a summary judgment decision denying 13 defendant's motion for summary judgment, not a decision 14 granting a motion in plaintiff's favor. 15 THE COURT: But do you really, Ms. Chin, quarrel with 16 the notion that neither held a comparable position to 17 Ms. Zubulake in 2000 and 2001? Because at that time I thought 18 Ms. Zubulake had something like 20 years' experience and was 19 called a senior salesperson, and these two were entry-level 20 newcomers. That's all I said to the jury was, they didn't hold 21 a comparable position. It seems to me it is QED true. 22 MR. CHINN: Your Honor, we believe that at least in 23 certain respects there is evidence in the record that Ms. Kim 24 managed accounts in the same fashion as Ms. Zubulake. 25 THE COURT: You really think there was evidence from SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1722 544MZUB3 1 which this jury could conclude that Ms. Kim in 2000 and 2001 2 held a comparable position to Ms. Zubulake? 3 MR. CHINN: That Ms. Kim during her career at UBS -- 4 THE COURT: That's not what I said to them. I said, 5 in 2000 and 2001, did not hold a comparable position. You look 6 at the employment application, you look at the employment 7 exhibit that shows what her pay was and what her experience 8 was, and it's kind of an extreme position to think they held a 9 comparable position at that time, which is all I said to the 10 jury. 11 Anything further? 12 MR. CHINN: Just to point out, your Honor, the charge 13 says to that held by Ms. Zubulake in 2000 or 2001. Both 14 Ms. Kim and Ms. Yeh testified as to events that postdated 15 Ms. Zubulake's employment. 16 THE COURT: That's fine. I said nothing about that 17 one way or the other. I told them all the facts were for them 18 to determine and I had no views on relevance. 19 MR. CHINN: Lastly, your Honor, in the exchange of 20 correspondence over the weekend, just for the record, we had 21 requested a charge that front pay should be -- I'm 22 paraphrasing -- temporary in nature. I want the record to 23 reflect that that request was denied. 24 THE COURT: Right. I found no support in the law for 25 that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1723 544MZUB3 1 I guess, with that, we are now waiting for a verdict. 2 Did you all write some letters for keeping your cell phones 3 that I can sign so you can retrieve them? This way, you can 4 retrieve it from the marshal, give us your number and then I 5 can -- 6 MR. HUBBARD: Will we have access to the courtroom? 7 THE COURT: Sure. 8 MR. HUBBARD: Should we stay outside? 9 THE COURT: You can sit here all you want. 10 Let me see what this one says. Ms. Plevan, it says 11 the following counsel are permitted to keep their cell phones 12 and Blackberries in the courthouse while the jury deliberates 13 in the matter of Zubulake v. UBS. There is a list of names and 14 it is dated today. I am going to so order that with today's 15 date. 16 Having ordered this, can I get a list of the phone 17 numbers so that my deputy can find your team within no more 18 than five or ten minutes at the most? I don't want anybody to 19 wander terribly far. 20 Supply the phone numbers to my deputy. You can wait 21 in the courtroom, but you don't have to wait to the courtroom. 22 MR. CHINN: Your Honor, can I take up an 23 administrative issue. 24 If you were called before the break, the parties had 25 advised the Court that we had agreed on the documents that were SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1724 544MZUB3 1 in evidence. I believe we should provide something to the 2 Court that memorializes what those are. So we have a chart 3 that's been prepared, if we can submit that to the Court. 4 THE COURT: That's fine. Also, we need to give you 5 the punitive damages charge so you see that. I should have 6 that to you in about five minutes, if you want to stick around 7 for a few minutes. 8 (Pause) 9 MR. HUBBARD: One problem, your Honor. The issue of 10 the stipulation on the net worth or financial condition of the 11 defendant. I have asked UBS PaineWebber to give us what they 12 would propose to be, a statement of the financial condition or 13 net worth of their operations in New York City. And I haven't 14 received anything from them and I just -- when we asked 15 Ms. Plevan she said basically, you know, you have got to 16 propose something. Well, for me to do that, as I said to the 17 Court last week, would take a little bit of time. So I was 18 hoping. 19 MS. PLEVAN: I don't really know when he says net 20 worth what he means. 21 THE COURT: What does the annual report say? Remember 22 you gave me an annual report to read. 23 MS. PLEVAN: I thought you had a proposal in mind. If 24 not, we will write one. We have not written one yet. 25 MR. HUBBARD: Your Honor, for constitutional reasons, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1725 544MZUB3 1 specifically the State Farm case, it is most likely required 2 here that what we do is not use the financial condition of UBS 3 worldwide, but that we use the financial condition of them in 4 the jurisdiction in which the law is being applied. That's New 5 York. This annual report doesn't segregate the financial 6 condition or revenues or net worth by the city or State of New 7 York, and so we are going to have to have either some help from 8 the defendants in isolating that number -- 9 THE COURT: Or you're going to have to call a witness. 10 MS. PLEVAN: I have asked him what he wanted -- 11 THE COURT: He wants a statement -- 12 MS. PLEVAN: Now I know. I think I understand. 13 THE COURT: Just on the odd chance the jury were to 14 come in at 5:00, we have got to be ready to go. Either we need 15 to have a witness down here who can testify to that, or you 16 make a phone call and get a number. It's that simple. 17 MS. PLEVAN: You want a statement -- 18 THE COURT: Can you talk off the record. 19 (Discussion off the record) 20 (Recess pending verdict) 21 (Jury present) 22 THE COURT: I want to put your two notes on the 23 record. At 3:40 you sent a note that we said we need P212 and 24 J108. I marked that as Court Exhibit 1. The lawyers agreed 25 both of those were in evidence, and I understand they were sent SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1726 544MZUB3 1 in to you at 3:50. 2 Who is the foreperson? 3 THE FOREPERSON: Coles. 4 THE COURT: The second note, which is at 5 p.m., I 5 have marked it as Court Exhibit 2. It says: We are adjourning 6 until tomorrow morning at 9:30, which, of course, is fine. 7 I want to make a couple of points to you. Please 8 don't discuss the case with other folks -- just with each 9 other -- now that you're deliberating. 10 Secondly, tomorrow morning, you can't begin 11 deliberating until you're all together. So if seven of you are 12 here, you're stuck with the weather and other important topics. 13 When the eight of you are here you can begin to deliberate. 14 I'm sure you are about to ask for coffee, so I'm sure you will 15 get it as soon as you can so you will have coffee in the 16 morning. Once there is eight of you, you can start. You won't 17 be called into court. You can start once there is eight. 18 Thank you. 19 (Jury not present) 20 (Adjourned to Tuesday, April 5, 2005, at 9:30 a.m.) 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300