217 F.R.D. 309, 321 (S.D.N.Y. 2003)
Laura Zubulake worked as an equities salesperson at UBS Warburg LLC from August 23, 1999, until her termination on October 9, 2001.1 She was a director on the U.S. Asian Equities Sales Desk and reported to Matthew Chapin after Dominic Vail left the position.2 Zubulake filed an EEOC charge alleging gender discrimination on August 16, 2001, and commenced this action on February 15, 2002, claiming sex discrimination and retaliation.3
On June 3, 2002, Zubulake served her first document request seeking all documents concerning communications by or between UBS employees concerning her.4 UBS produced approximately 350 pages of documents, including about 100 pages of emails, in July 2002.5 The parties entered into an agreement on September 12, 2002, providing that UBS would produce responsive emails from five specified individuals if retrieval was possible.6
Zubulake produced over 450 pages of emails herself, including a chain with a message from Chapin to Andrew Clarke indicating that it was not a question of if but when they would get rid of her.7 UBS's email system used HP OpenMail, with backups created daily, weekly, and monthly using Veritas NetBackup, resulting in 94 tapes that might contain responsive emails from Chapin, Clarke, Tong, Datta, and Hardisty.8 UBS also archived external emails sent or received by registered traders on optical disks searchable with Tumbleweed software.9
After UBS declined to search backup tapes due to estimated costs of $300,000, the parties appeared before Magistrate Judge Gorenstein on December 2, 2002.10 UBS produced Christopher Behny for deposition on January 14, 2003, who described the backup protocols and restoration process, which takes about five days per tape.11 UBS later estimated restoration costs at approximately $175,000 to $180,000 plus attorney time.12
Zubulake moved for an order compelling UBS to produce emails from backup tapes and imposing sanctions for failure to preserve and produce those emails.13
Whether a party has a duty to preserve electronic evidence including emails when it reasonably anticipates litigation?14
The obligation to preserve evidence arises when a party knows or reasonably should know that the evidence may be relevant to future litigation. Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a litigation hold to ensure the preservation of relevant documents.15
Yes. Zubulake filed an EEOC charge on August 16, 2001, after which UBS reasonably anticipated litigation and therefore had a duty to preserve the emails concerning Zubulake, including those on the ninety-four backup tapes, rather than continuing to overwrite them pursuant to its routine retention policy.16
UBS had a duty to preserve the emails concerning Zubulake once litigation was reasonably anticipated.17
Whether the scope of a party's obligation to preserve and produce emails stored on backup tapes depends on the circumstances of the case?18
The scope of the duty to preserve depends on the circumstances of the case. A party must preserve emails from key custodians likely to possess relevant information. It is not required to search every backup tape in the organization.19
Yes. UBS was obligated to preserve and produce emails from the five key individuals named in the September 12, 2002 agreement. The court therefore ordered UBS to restore and search five of the backup tapes at its own expense to determine whether additional responsive emails exist.20
The obligation extends to emails from key custodians on backup tapes but is limited to a sample restoration in the first instance.21
Whether cost-shifting is appropriate for discovery of inaccessible electronic data on backup tapes?22
Cost-shifting should be considered only when electronic discovery imposes an undue burden or expense on the responding party. The presumption remains that the responding party bears the costs of production unless the burden outweighs the likely benefit under the seven-factor test.23
No. Although the emails reside on inaccessible backup tapes, UBS must bear the expense of restoring a sample of five tapes. The data is relevant to Zubulake's claims. The cost of the limited sample does not yet constitute an undue burden warranting a shift to the requesting party.24
Cost-shifting is not appropriate for the initial sample restoration of the backup tapes.25
Whether sanctions including an adverse inference instruction are appropriate for failure to preserve relevant emails?26
Sanctions for spoliation are within the court's discretion and require consideration of the spoliating party's culpability, the prejudice to the opposing party, and whether a lesser sanction would suffice.27
No. Although UBS continued its routine overwriting of backup tapes after litigation was anticipated, the court addressed the production issue through a limited restoration order. Rather than imposing sanctions such as an adverse inference instruction at this stage, the court compelled production of a sample of tapes at UBS's expense. UBS was at least grossly negligent in failing to implement a litigation hold. The prejudice to Zubulake is significant because the deleted emails may have contained critical evidence of discrimination.28
Sanctions are not imposed in the present order.29