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It’s been nearly two decades since a landmark case was decided in the Southern District of New York, but the facts of the case remain more relevant that ever today in the rapidly evolving world of electronic discovery.

The Facts

Zubulake v. UBS Warburg was litigation brought about by a former employee of UBS Warburg, Laura Zubulake, who filed a gender discrimination suit and requested that UBS Warburg produce all of the documents related to communication between Plaintiff and Defendant. In response, UBS Warburg was able to produce 350 pages of documents, which included roughly 100 pages of emails.

While UBS Warburg was able to produce the 350 pages of documents in a timely manner, Zubulake knew more existed due to the fact that she herself had collected approximately 450 pages of emails between her and her former employer. Subsequently, she then requested that they produce the missing emails via archival media.

Cost-Shifting

In response, UBS Warburg attempted to shift the cost of producing these documents to Zubulake, claiming undue burden and expense and citing the Rowe decision. The court then considered the Rowe 8-factor cost-shifting test, but eventually ordered that UBS Warburg would be financially responsible for producing all responsive emails existing on optical disks, active servers, and several backup tapes as selected by Zubulake. After the evidence had been reviewed, the court would make a proper cost-shifting ruling.

UBS Warburg was unable to produce the additional emails. In fact, it was discovered that certain backup tapes were missing and that emails had either been deleted or could not be located. Zubulake then moved for evidentiary and monetary sanctions against UBS Warburg due to this failure to preserve these documents.

Duty to Preserve

It was the court’s finding that Defendant had a duty to preserve the missing documents, considering the documents contained information that could reasonably be considered to be related to future litigation. Additionally, the court found that Defendant had failed to abide by their own retention policy—which would have allowed them to retrieve the pertinent emails.

UBS Warburg eventually was able to produce some, but not all of the missing evidence. Most notably, an email pertaining to Zubulake while she was employed there. Zubulake then contended that Defendant had prejudiced the case by recovering these emails after the initial discovery and related document requests. Furthermore, Plaintiff requested sanctions in the form of an adverse inference jury instruction.

Spoliation & Attorney’s Duty

After determining UBS Warburg had willfully deleted pertinent documents despite clear court orders, the sanctions were granted and Defendant was responsible for all costs. The court also noted that the defense counsel was somewhat responsible for this ruling, due to the fact that they were not able to locate, preserve and produce all of this information in a timely manner. This also led to the court concluding that litigators must assure that identified relevant documents are retained via a hold on these materials, communicating the need for preservation and any necessary archiving.

The precedent set in this case was revolutionary for electronic discovery issues, establishing several groundbreaking factors that are as relevant as ever during litigation:

  1. Scope of party’s duty to preserve electronic evidence throughout litigation
  2. Attorney’s duty to monitor client’s compliance with preservation and production laws
  3. Establishing sanctions for spoliation (or willful destruction) of electronic evidence
  4. Ability of a party to shift financial burden of restoration to requesting party

How Western Integrated Systems Can Help

With nearly 40 years of experience in the ever-evolving world of records retention, Western Integrated Systems offers a variety of services that can help your organization remain compliant, safeguard against litigation, and assure records are managed properly.

If these are issues your organization wants to address today, call or email Western Integrated Systems and we can discuss our wide-range of services and how we can tailor them to meet and exceed your needs.