Court Rulings

Zubulake v. UBS Warburg, 2004 WL 1620866 (S.D.N.Y. July 20, 2004). During an ongoing discovery dispute in an employment discrimination case, the employee moved for sanctions against the employer for failing to produce backup tapes containing relevant emails and for failing to produce other relevant documents in a timely manner. See Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003). In this latest motion, the employee contended that the employer, who recovered some of the deleted relevant emails, prejudiced her case by producing recovered emails long after the initial document requests. Furthermore, some of the emails were never produced, including an email that pertained to a relevant conversation about the employee. As such, the employee requested sanctions in the form of an adverse inference jury instruction.

Determining that the employer had willfully deleted relevant emails despite contrary court orders, the court granted the motion for sanctions and also ordered the employer to pay costs. The court further noted that defense counsel was partly to blame for the document destruction because it had failed in its duty to locate relevant information, to preserve that information, and to timely produce that information. In addressing the role of counsel in litigation generally, the court stated that "[c]ounsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched." Specifically, the court concluded that attorneys are obligated to ensure all relevant documents are discovered, retained, and produced. Additionally, the court declared that litigators must guarantee that identified relevant documents are preserved by placing a "litigation hold" on the documents, communicating the need to preserve them, and arranging for safeguarding of relevant archival media.