Ensuring Compliance and Controlling Abuse

Zubulake v. UBS Warburg LLC

217 F.R.D. 309 (S.D.N.Y. 2003).

Question

Are the stored emails discoverable?

Rule

1. When the documents are accessible, normal discovery rules apply. When not accessible, the courts may consider cost shifting.
2. Information is required before cost-shifting analysis begins. Therefore, respondents are required to conduct a sample search of inaccessible documents.
3. With the information from the sample, courts consider the following factors to determine if the cost should be shifted:
   1. The extent the request is tailored to relevant information.
   2. Availability of the information from other sources.
   3. Total cost of production v. amount in controversy.
   4. Cost of production v. party resources.
   5. Relative ability of each party to control costs + incentives to control costs.
   6. Importance of the issues.
   7. Benefits to the party receiving the information.

Holding

UBS is required to provide all active documents and conduct a sample search of other inaccessible documents.

Facts

Zubulake was employed by UBS. However, she threatened to sue for gender discrimination and illegal retaliation. To support her claim, she has produced over 450 pages of emails related to the claim. UBS has produced only 100 pages and claims that the remainder cannot be produced because they would have to conduct an extensive search into the email archives in back-up tape storage and through optical disk storage.

As such, Zubulake filed a motion to compel discovery of the additional emails. UBS is resisting arguing that electronic documents were not readily discoverable (this was before rule 34 was adopted to include electronic documentation). Additionally, if the documents are discoverable, that Zubulake should bear the cost of discovery.

Analysis

Takeaway for the purpose of this topic: You cannot delete your electronic information and expect it to be undiscoverable. All electronic information is discoverable. When the information is not readily accessible, there may be some discussions about shifting the cost of discovery after a sample search has been conducted (at the cost of the respondent).

Additional Notes

Case Notes

The whole case here is that that Zubulake is trying to get emails while UBS is saying that the emails are no longer available. Simply put, UBS was trying to hide information.

This was a case where UBS was engaging in spoliation (the destruction of evidence). Because of the spoliation, the jury was instructed to make an adverse inference about the emails (view them against the destroyer). When an attorney engages in spoliation, they can be disbarred. When a client engages in spoliation, the evidence is considered against them and they could also be sanctioned.

Here, UBS claims that the emails were not discoverable because it would be unduly burdensome. However, these emails are contained in UBS’s email service so it is their responsibility to preserve those emails.

Although the plaintiff has the burden to prove that the preponderance of the evidence favors them, the defendant has the burden to produce all relevant documents (if asked for it). Here, the evidence was relevant. The emails requested were emails that referenced Zubulake (Zubulake only had emails of direct communication). This means, the request covered communication from supervisors who were discussing Zubulake.

When the request came up with nearly no evidence, suspicion arises as to the conduct of UBS.

Takeaway

Do not delete stuff.

The term of art is a “litigation hold.” This is the attorney’s instruction to the client to hold all pertinent (to the litigation) documents. Facts are not privileged. FOR THE EXAM: We issue the litigation hold not only when the lawsuit is filed, but is sent as soon as litigation is reasonably expected or anticipated. In a case like this, litigation is reasonably anticipated from the moment they realize they are going to terminate the employee. If the litigation hold is ignored by the client, and evidence is deleted, then the opposing counsel will request that the judge instruct for adverse inference.

If the attorney discovers that evidence was destroyed, the attorney has to disclose that information to the court.

Process if ignored:

1. Issue litigation hold (pending or reasonable anticipation of litigation) (make sure the issue is dated in writing).
2. Hold is ignored and client engages in spoliation (change or destruction of evidence) (discovered during discovery).
3. Motion for instruction of adverse inference (made during trial).
4. Jury ruling.

So, a person who wants an adverse inference has to prove the following three elements:

1. The party having control (custody) over the evidence had an obligation to preserve it at the time it was destroyed.
2. That the records were destroyed with a “culpable state of mind” (fact specific)
3. The destroyed evidence was “relevant” to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.

Rule 37(e): Penalties for failing to preserve electronically stored information

If a party fails to preserve ESI with the intent to deprive the other party to use the information, then we assume the information was unfavorable to the party.

Key Questions:

1. When does the duty to preserve arise?
   • When you reasonably anticipate litigation
2. What is the scope of the duty to preserve?
   • Material that is relevant to claims or defenses of the pertinent litigation.
3. What documents/evidence must be retained?
   • Everything that is relevant