Nature of the Case
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Facts
This is the fifth written opinion in this case. Laura Zubulake (P) is once again moving to sanction UBS (D) for its failure to produce relevant information and for its tardy production of such material. Early on in this litigation, D's counsel both in house and outside instructed D personnel to retain relevant electronic information. Notwithstanding these instructions, D employees deleted relevant emails. Other employees never produced relevant information to counsel. Many discoverable emails were not produced to P until recently, even though they were responsive to a document request propounded on June 3, 2002. 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 emails, and which would have mitigated the damage done by D's destruction of those emails. P is an equities trader specializing in Asian securities who is suing her former employer for gender discrimination, failure to promote, and retaliation under federal, state, and city law. She filed an initial charge of gender discrimination with the EEOC on August 16, 2001. As early as April 2001 D’s employees were on notice of P's impending court action. After she received a right to sue letter from the EEOC, P filed this lawsuit on February 15, 2002. D's in house attorneys gave oral instructions in August 2001 not to destroy or delete material potentially relevant to P's claims, and in fact to segregate such material into separate files for the lawyers' eventual review. D's outside counsel met with a number of the key players reminding them to preserve relevant documents, 'including emails.' Written warnings were issued on February 22, 2002, and September 25, 2002. In August 2002, after P propounded a document request that specifically called for emails stored on backup tapes, D's outside counsel instructed D information technology personnel to stop recycling backup tapes. P propounded discover, and D pressed for cost shifting with respect to restoration of backup tapes. In prior hearings, it was demonstrated that D had failed to maintain all relevant information (principally emails) in its active files. In the restoration effort, the parties discovered that certain backup tapes [were] missing.' They also discovered a number of emails on the backup tapes that were missing from D's active files, confirming P's suspicion that relevant emails were being deleted or otherwise lost. P moved for sanctions as a result of D's failure to preserve all relevant backup tapes and D's deletion of relevant emails. P lacked evidence that the lost tapes and deleted emails were particularly favorable, but D was ordered to pay for the re-deposition of several key D employees Varsano, Chapin, Hardisty, Kim, and Tong so that P could inquire about the newly restored emails. During the re-depositions, P learned about more deleted emails and about the existence of emails preserved on D's active servers that were, to that point, never produced. P has now presented evidence that D personnel deleted relevant emails, some of which were recovered from backup tapes and produced long after her initial document requests, and some of which were lost altogether. P has also presented evidence that some D personnel did not produce responsive documents to counsel until recently. P has motioned for sanctions.
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