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Zubulake v. UBS Warburg LLC

United States District Court for the Southern District of New York

October 22, 2003, Decided ; October 22, 2003, Filed

02 Civ. 1243 (SAS)




"Documents create a paper reality we call proof." 1 The absence of such documentary proof may stymie the search for the truth. If documents are lost or destroyed when they should have been preserved because a litigation was threatened or pending, a party may be prejudiced. The questions presented here are how to determine an appropriate penalty for the party that caused the loss and -- the flip side -- how to determine an appropriate remedy for the party injured by the loss.

 [**2]  Finding a suitable sanction for the destruction of evidence in civil cases has never been easy. Electronic evidence only complicates matters. As documents are increasingly maintained electronically, it has become easier to delete or tamper with evidence (both intentionally and inadvertently) and more difficult for litigants to craft policies that ensure all relevant documents are preserved. 2 This opinion addresses both the scope of a litigant's duty to preserve electronic documents and the consequences of a failure to preserve documents that fall within the scope of that duty.


This is the fourth opinion resolving [**3]  discovery disputes in this case. Familiarity with  [*215]  the prior opinions is presumed, 3 [**4]  and only background information relevant to the instant dispute is described here. In brief, Laura Zubulake, an equities trader who earned approximately $ 650,000 a year with UBS, 4 is suing UBS for gender discrimination, failure to promote, and retaliation under federal, state, and city law. She has repeatedly maintained that the evidence she needs to prove her case exists in e-mail correspondence sent among various UBS employees and stored only on UBS's computer systems.

On July 24, 2003, I ordered the parties to share the cost of restoring certain UBS backup tapes that contained e-mails relevant to Zubulake's claims. 5 In the restoration effort, the parties discovered that certain backup tapes are missing. In particular:

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220 F.R.D. 212 *; 2003 U.S. Dist. LEXIS 18771 **; 92 Fair Empl. Prac. Cas. (BNA) 1539

LAURA ZUBULAKE, Plaintiff, -against- UBS WARBURG LLC, UBS WARBURG, and UBS AG, Defendants.

Subsequent History: Sanctions allowed by Zubulake v. UBS Warburg LLC, 2004 U.S. Dist. LEXIS 13574 (S.D.N.Y., July 20, 2004)

Prior History: Zubulake v. UBS Warburg LLC, 216 F.R.D. 280, 2003 U.S. Dist. LEXIS 12643 (S.D.N.Y., 2003)

Disposition:  [**1]  Plaintiff's motion for reconsideration of prior order denied. Plaintiff's motion for inverse inference instruction denied and motion seeking costs for additional depositions granted.


tapes, backup, e-mails, duty to preserve, documents, adverse inference, destroyed, spoliation, preserved, electronic, employees, destruction, deleted, missing, anticipated, directive, discovery, costs, relevant documents, retention, sanctions, restoration, monthly, culpability, unfavorable, reckless, stored, files

Civil Procedure, Judicial Officers, Judges, Discretionary Powers, Evidence, Relevance, Preservation of Relevant Evidence, Spoliation, Discovery & Disclosure, Discovery, Misconduct During Discovery, Disclosure, Sanctions, Preservation of Relevant Evidence, Relevance of Discoverable Information, Electronic Discovery, Electronic Information Preservation, General Overview, Mandatory Disclosures, Jury Trials, Jury Instructions, Inferences & Presumptions, Inferences