Law School Case Brief
Zubulake v. UBS Warburg LLC - 220 F.R.D. 212 (S.D.N.Y. 2003)
The scope of a party's evidence preservation obligation can be described as follows: once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a litigation hold to ensure the preservation of relevant documents. As a general rule, that litigation hold does not apply to inaccessible backup tapes (e.g., those typically maintained solely for the purpose of disaster recovery), which may continue to be recycled on the schedule set forth in the company's policy. On the other hand, if backup tapes are accessible (i.e., actively used for information retrieval), then such tapes would likely be subject to the litigation hold. However, it does make sense to create one exception to this general rule. If a company can identify where particular employee documents are stored on backup tapes, then the tapes storing the documents of key players to the existing or threatened litigation should be preserved if the information contained on those tapes is not otherwise available. This exception applies to all backup tapes.
Laura Zubulake, an equities trader who earned approximately $ 650,000 a year with UBS, sued her former employer, 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 existed in e-mail correspondence sent among various UBS employees and stored only on UBS's computer systems. The parties were previously ordered to share the costs of restoring backup tapes that contained relevant e-mails. During the restoration, the parties discovered that certain relevant tapes were missing. Zubulake sought sanctions for the failure to preserve the missing backup tapes and deleted e-mails and sought costs for the restoration of the backup tapes, an adverse inference instruction, and costs for re-depositions.
Should the Sanction be granted?
The United States District Court for the Southern District of New York found that the duty to preserve the missing tapes arose when the relevant people at UBS anticipated litigation, four months before the Zubulake filed her Equal Employment Opportunity Commission charge. Because UBS was negligent, and possibly reckless, Zubulake satisfied her burden with respect to the first two prongs of the spoliation test. However, Zubulake failed to show that the lost tapes contained relevant information. Under the circumstances, it was inappropriate to give an adverse inference instruction to the jury. The Court denied Zubulake's motions for an adverse inference instruction and for reconsideration of the Court's July 24, 2003 order.
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