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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. Further, the court suggested that litigators must guarantee that relevant documents are preserved by instituting a litigation hold on key data, and safeguarding archival media.
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that the evidence would have been unfavorable to UBS." In addition, the court awarded plaintiff monetary sanctions for reimbursement of costs of additional re-depositions and of the motion leading to this opinion, including attorney fees. The jury found in
Zubulake's favor on both claims awarding compensatory and punitive awards. .
252:, which recovered some of the deleted relevant emails, prejudiced her case by producing recovered emails long after the initial document requests. Additionally, parts of important communication exchanged between key parties was never recovered, including an email that would reveal a relevant conversation about the employee.
167:; (4) backup tapes; (5) fragmented, erased and damaged data. The last two were considered inaccessible, that is, not readily available and thus subject to cost-shifting. The court, then discussing the Rowe decision (the balance test), concluded that it needed modification and created a new seven-factor test:
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Warburg. In the final instructions to the jury the Court instructed in part, "f you find that UBS could have produced this evidence, the evidence was within its control, and the evidence would have been material in deciding facts in dispute in this case, you are permitted, but not required, to infer
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After the results of the sample restoration, both parties wanted the other to fully pay for the remaining backup email. The sample cost the defendant about $ 19,003 for restoration but the estimate costs for the production was $ 273,649, including attorney and paralegal review costs. After applying
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During the restoration effort, as described in the court's prior opinions (see
Zubulake I and III), the parties learned that some backup tapes were no longer available. The parties also concluded that relevant emails created after the initial proceedings had been deleted from UBS's email system and
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In an employment discrimination suit against her former employer, Laura
Zubulake, the plaintiff, argued that key evidence was located in various emails exchanged among employees of UBS, the defendant. Initially, the defendant produced about 350 pages of documents, including approximately 100 pages
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had failed to take all necessary steps to guarantee that relevant data was both preserved and produced, and granted the plaintiff's motion for sanctions. Specifically, the court ruled that the jury would be given an adverse inference instruction, sought in
Zubulake IV, due to the deleted evidence
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In addition, the court noted that the defense counsel was partly to be blamed for the document destruction because it had failed in its duty to locate and preserve relevant information. In addressing the role of counsel in litigation, the court stated that "ounsel must take affirmative steps to
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The defendant, arguing undue burden and expense, requested the court to shift the cost of production to the plaintiff, citing the Rowe decision. The court stated that whether the production of documents is unduly burdensome or expensive "turns primarily on whether it is kept in an accessible or
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The defendant was ordered to produce, at its own expense, all responsive email existing on its optical disks, servers, and five backup tapes as selected by the plaintiff. The court would only conduct a cost-shifting analysis after the review of the contents of the backup tapes.
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inaccessible format". The court concluded that the issue of accessibility depends on the media on which data are stored. It described five categories of electronic repositories: (1) online data, including hard disks; (2) near-line data, including optical disks; (3)
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Finally, the court concluded that the defendant deliberately acted in destroying relevant information and failing to follow the instructions and demonstrate care on preserving and recovering key documents. As a result, Judge Shira
Scheindlin ordered an
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The court found that the defendant had a duty to preserve evidence since it should have known that it would be relevant for future litigation. However, the court concluded that the plaintiff failed to demonstrate that the lost evidence supported the
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The case has set important practices relating to both the legal and technical aspects of electronic discovery, as the relevant communication among interested parties was available in digital form. The main issues raised were:
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the seven–factor test, it determined that the plaintiff should account for 25 percent of the restoration and searching costs, excluding attorney review costs.
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128:, Zubulake III, Zubulake IV, and Zubulake V. In 2012, the plaintiff published a book about her e-discovery experiences titled
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of email. However, the plaintiff alone had produced approximately 450 pages of email correspondence. The plaintiff requested
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was accountable for paying the costs of any depositions or re-depositions required by its late production of email, and that
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Series of groundbreaking opinions by Judge Shira
Scheindlin, including Zubulake I, Zubulake III, Zubulake IV, and Zubulake V
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Lawyer's duty to monitor their clients' compliance with electronic data preservation and production (litigation hold);
240:(emails and tapes) and inability to recover key documents during the course of the case. Furthermore, it ruled that
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The ability for the disclosing party to shift the costs to the requesting party of recovering inaccessible media (
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Bauccio, Salvatore J. (2007). "The E-Discovery: Why and How E-mail is
Changing the Way Trials Are Won and Lost".
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Data sampling, so that knowledge about costs and effectiveness of the recovering process are known in advance;
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to pay for the total costs of restoring the remaining backup tapes. In addition, Laura
Zubulake sought an
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during the course of litigation or even when first acknowledged that a chance of litigation exists;
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instruction claim. The court ordered the defendant to cover the costs as claimed by the plaintiff.
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Glovin, David. "UBS Must Pay Ex-Saleswoman $ 29.3 Million in Sex Bias Case". Bloomberg at
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The extent to which the request is specifically tailored to discover relevant information;
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116:. Judge Shira Scheindlin's rulings comprise some of the most often cited in the area of
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100:, presiding over the case, issued a series of groundbreaking opinions in the field of
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See Rowe
Entertainment v. The William Morris Agency, 205 F.R.D. 421 (S.D.N.Y. 2002)
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and the costs for re-deposing some individuals due to the destruction of evidence.
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were only accessible on backup tapes. The plaintiff then sought an order requiring
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Iqbal, Mohamed (July 2005). "The New
Paradigms of E-discovery and Cost-shifting".
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The total cost of production, compared to the resources available to each party;
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to locate the documents that existed in backup tapes and other archiving media.
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reimburse plaintiff for the costs of the motion. Laura Zubulake contended that
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The relative ability of each party to control costs and its incentive to do so;
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United States District Court for the Southern District of New York cases
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The total cost of production, compared to the amount in controversy;
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The relative benefits to the parties of obtaining the information.
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United States District Court for the Southern District of New York
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United States District Court for the Southern District of New York
567:"Judge Scheindlin Interview on Records and Compliance Management"
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Zubulake's e-Discovery: The Untold Story of my Quest for Justice.
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Sautter, Ed (October 2005). "The New Rules on E-disclosure".
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The importance of the issues at stake in the litigation; and
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Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003)
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Official website for the U.S. District Court for the SDNY
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Marchetta, Anthony J.; Scordo, John P. (December 2004).
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The availability of such information from other sources;
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Zubulake v. UBS Warburg, 229 F.R.D. 422 (S.D.N.Y. 2004)
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Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003)
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Zubulake v. UBS Warburg, 216 F.R.D. 280 (S.D.N.Y. 2003)
517:"The Duty To Preserve Backup Tapes After Zubulake V"
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571:ARMA 2006 International Conference and Expo
462:Zubulake v. UBS Warburg LLC, 216 F.R.D. 280
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496:Cohen, Adam I.; Lender, David J. (2003).
471:Zubulake v. UBS Warburg, 2004 WL 1620866
287:The scope of a party's duty to preserve
426:Zubulake v. UBS Warburg, 217 F.R.D. 309
372:Zubulake v. UBS Warburg, 217 F.R.D. 309
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498:Electronic Discovery: Law and Practice
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307:The imposition of sanctions for the
363:13 J. Tech. L. & Pol'y 261 2008
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577:from the original on May 29, 2010
500:. Aspen Publishers Online, 2003.
617:United States discovery case law
122:Federal Rules of Civil Procedure
235:Here, the court concluded that
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336:Electronic discovery
304:tapes, for example);
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215:instruction against
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102:electronic discovery
565:Scheindlin, Shira.
558:Duquesne Law Review
140:Zubulake I and III
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