Zubulake v. Ubs Warburg LLC

229 F.R.D. 422 (S.D.N.Y. 2004)


Laura Zubulake (P), an equities trader who earned approximately $650,000 a year with UBS (D) is suing D for gender discrimination, failure to promote, and retaliation under federal, state, and city law. P states 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, the judge ordered the parties to share the cost of restoring certain D backup tapes that contained emails relevant to P's claims. In the restoration effort, the parties discovered that certain backup tapes are missing. In addition, isolated e-mails -- created after D supposedly began retaining all relevant e-mails --were deleted from D's system, although they appear to have been saved on the backup tapes. P now seeks sanctions against D for its failure to preserve the missing backup tapes and deleted e-mails. P seeks (a) an order requiring D to pay in full the costs of restoring the remainder of the monthly backup tapes; (b) an adverse inference instruction against D with respect to the backup tapes that are missing; and (c) an order directing D to bear the costs of re-deposing certain individuals concerning the issues raised in newly produced e-mails. In the last installment P failed to establish the three elements related to spoliation sufficient for an adverse inference instruction: (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. D was ordered to produce the missing documents at its own cost, but P was denied an adverse inference instruction as she did not prove the content of the emails that were lost. P could not demonstrate that the lost evidence would have supported her claims. Under the circumstances, it would be inappropriate to give an adverse inference instruction to the jury. D was ordered to pay the costs of re-deposing Chapin, Hardisty, Tong, and Josh Varsano. P's motions for an adverse inference instruction and for reconsideration of the Court's July 24, 2003, was denied. P is now again before the court on a motion for further sanctions for failure to produce relevant material and for tardy production of such material from the most current court order. P comes before the court with evidence that a number of key D employees-Orgill, Hardisty, Holland, Chapin, Varsano, and Amone-failed to retain e-mails germane to P's claims. Some of the deleted e-mails were restored from backup tapes (or other sources) and have been produced to P, others have been altogether lost, though there is strong evidence that they once existed. The court has long been aware that certain e-mails were deleted, but for the first-time P was able to demonstrate the scope and importance of those documents. Although P has only been able to present concrete evidence that this one e-mail was irretrievably lost, there may well be others. P has presented extensive proof, that D personnel were deleting relevant e-mails. Many of those e-mails were recovered from backup tapes. D record retention policies called for monthly backup tapes to be retained for three years. Nonetheless, many backup tapes for the most relevant time periods are missing, including: Tong's tapes for June, July, August, and September of 2001; Hardisty's tapes for May, June, and August of 2001; Clarke and Vinay Datta's tapes for April and September 2001; and Chapin's tape for April 2001. Other e-mails were deleted in contravention of counsel's “litigation hold” instructions, but were subsequently recovered from alternative sources-such as backup tapes-and thus produced to P, albeit almost two years after she propounded her initial document requests.