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Zubulake v. UBS Warburg LLC

United States District Court for the Southern District of New York

July 20, 2004, Decided ; July 20, 2004, Filed

02 Civ. 1243 (SAS)




Commenting on the importance of speaking clearly and listening closely, Phillip Roth memorably quipped, "The English language is a form of communication! … Words aren't only bombs and bullets -- no, they're little gifts, containing meanings!" 1 What is true in love is equally true at law: Lawyers and their clients need to communicate clearly and effectively with one another to ensure that litigation proceeds efficiently. When communication between counsel and client breaks down, conversation becomes "just crossfire," 2 and there are usually casualties.


This is the fifth [**2]  written opinion in this case, a relatively routine employment discrimination dispute in which discovery has now lasted over two years. Laura Zubulake is once again moving to sanction UBS for its failure to produce relevant information and for its tardy production of such material. In order to decide whether sanctions are warranted, the following question must be answered: Did UBS fail to preserve and timely produce relevant information and, if so, did it act negligently, recklessly, or willfully?

This decision addresses counsel's obligation to ensure that relevant information is preserved by giving clear instructions to the client to preserve such information and, perhaps more importantly, a client's obligation to heed those instructions. Early on in this litigation, UBS's counsel -- both in-house and outside -- instructed UBS personnel to retain relevant electronic information. Notwithstanding these instructions, certain UBS employees deleted relevant emails. Other employees never produced relevant information to counsel. As a result, many discoverable e-mails were not produced to Zubulake until recently, even though they were responsive to a document request propounded on June 3, 2002. 3 [**3]  In addition, a number of e-mails responsive to that document request were deleted and have been lost altogether.

Counsel, in turn, failed to request retained information from one key employee and to give the litigation hold instructions to another. They also failed to adequately communicate with another employee about how she maintained her computer files. Counsel also failed to safeguard backup tapes that might have contained some of the deleted e-mails, and which would have mitigated the damage done by UBS's destruction of those e-mails.

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229 F.R.D. 422 *; 2004 U.S. Dist. LEXIS 13574 **; 94 Fair Empl. Prac. Cas. (BNA) 1; 85 Empl. Prac. Dec. (CCH) P41,728

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

Subsequent History: Motion denied by Zubulake v. UBS Warburg LLC, 2005 U.S. Dist. LEXIS 1525 (S.D.N.Y., Feb. 2, 2005)

Prior History: Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 2003 U.S. Dist. LEXIS 18771 (S.D.N.Y., 2003)

Disposition: Plaintiff's motion for sanctions allowed.


e-mails, tapes, backup, deleted, employees, relevant information, restored, instructions, preservation, deposition, discovery, files, personnel, recovered, communicate, sanctions, electronic, players, spoliation, documents, outside counsel, re-deposition, conversation, duty to preserve, destruction, destroyed, retention, copies, stored, information technology

Civil Procedure, Judicial Officers, Judges, Discretionary Powers, Discovery & Disclosure, Discovery, Misconduct During Discovery, Evidence, Inferences & Presumptions, Inferences, Relevance, Preservation of Relevant Evidence, Spoliation, Relevant Evidence, Attorneys, Preservation of Relevant Evidence, Disclosure, Mandatory Disclosures, General Overview, Attorneys, Methods of Discovery, Interrogatories, Inspection & Production Requests, Sanctions