Zubulake v. UBS Warburg LLC, “Zubulake V”, 229 F.R.D. 422 (S.D.N.Y. 2004)

In the Introduction section of the opinion, the court provided a brief background of the case, the motion at hand, and the issues for consideration:

“This is the fifth written opinion in this case, a relatively routine employment discrimination dispute in which discovery has now lasted over two years. Laura Zubulake is once again moving to sanction UBS for its failure to produce relevant information and for its tardy production of such material. In order to decide whether sanctions are warranted, the following question must be answered: Did UBS fail to preserve and timely produce relevant information and, if so, did it act negligently, recklessly, or willfully?”

The court summarized the failures of both client and counsel:

“Counsel failed to communicate the litigation hold order to all key players. They also failed to ascertain each of the key players’ document management habits. By the same token, UBS employees — for unknown reasons — ignored many of the instructions that counsel gave. This case represents a failure of communication, and that failure falls on counsel and client alike.

At the end of the day, however, the duty to preserve and produce documents rests on the party. Once that duty is made clear to a party, either by court order or by instructions from counsel, that party is on notice of its obligations and acts at its own peril. Though more diligent action on the part of counsel would have mitigated some of the damage caused by UBS’s deletion of emails, UBS deleted the e-mails in defiance of explicit instructions not to.”

The court considered the appropriate remedy after finding the client was under a duty to preserve and willfully deleted presumably relevant emails. The sanctions imposed included adverse jury instructions, payment of costs for depositions or re-depositions due to late production, and payment of costs associated with the motion.


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