Law School Case Brief
Zubulake v. UBS Warburg LLC - 229 F.R.D. 422 (S.D.N.Y. 2004)
The spoliation of evidence germane to proof of an issue at trial can support an inference that the evidence would have been unfavorable to the party responsible for its destruction. A party seeking an adverse inference instruction (or other sanctions) based on the spoliation of evidence must establish the following three elements: (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a "culpable state of mind" and (3) that the destroyed evidence was "relevant" to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.
Laura Zubulake (hereinafter, “plaintiff”) was an equities trader specializing in Asian securities who was suing her former employer – UBS Warburg and UBS AG (defendants) - for gender discrimination, failure to promote, and retaliation under federal, state, and city law. Fully aware of their common law duty to preserve relevant evidence, UBS's in-house attorneys gave oral instructions in August 2001, instructing employees not to destroy or delete material potentially relevant to Zubulake's claims. 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. In addition, a number of e-mails responsive to that document request were deleted and have been lost altogether. Because of this, Zubulake filed a Fed. R. Civ. P. 37 motion to sanction defendants for their failure to produce relevant information and for their tardy production of such material.
Should the defendants be sanctioned due to their failure to produce relevant information and for their tardy production of such material?
The district court awarded Fed. R. Civ. P. 37 sanctions, noting that because defendants’ spoliation was willful, the lost information was presumed to be relevant. According to the court, the defendants failed to preserve relevant e-mails, even after receiving adequate warnings from counsel, resulting in the production of some relevant e-mails almost two years after they were initially requested and resulting in the complete destruction of others. Further, the court observed that defendants’ counsel had failed to communicate the litigation hold to all of the litigation's key players and failed to ascertain each of the key players' document management habits such that for "unknown" reasons, defendants’ employees ignored many of the instructions. Accordingly, the court held that defendants and their counsel had not taken all necessary steps to guarantee that relevant data was both preserved and produced.
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