E-Discovery Basics: Zubulake IV

In the last few weeks, I have been discussing the Zubulake case of 2003 and 2004. Background on the case can be found in my previous installments here, here and here. If you are not familiar with the case, it is worthwhile to review these earlier blog posts.

Picking up the story, a few months after issuing her third decision in the Zubulake case, Judge Scheindlin released her fourth decision.
UBS had been restoring back-up tapes related to the case and found that some tapes were missing.
Also, UBS discovered that emails important to the case had been deleted from the UBS email system, and were now available only on back-up tape. This was a problem, as UBS had told its employees to stop deleting any emails relating to this case.
Zubulake asked the judge to impose sanctions on UBS because of this issue.

The judge decided that UBS had a duty to preserve emails related to Zubulake, and that that this duty started when it seemed very likely that Zubulake would sue UBS.
The next question addressed was: preserve which emails? The judge decided that all documents relevant to the case belonging to "key players" had to be kept by UBS.

Zubulake had requested an "adverse inference instruction" from the judge. If granted, this would end the case, as UBS would have no reasonable option but to settle with Zubulake. An adverse inference instruction is extreme - a judge tells a jury to assume that if one side destroyed evidence, then this evidence must have been very harmful to that side's case.

Judge Scheindlin decided that Zubulake could not show that the lost evidence would have supported her claims, and so she would not issue an adverse inference instruction. However, UBS did have to cover Zubulake's cost for re-deposing some witnesses on issues raised by the missing back-up tapes.

Next week, I'll wrap up my discussion of the Zubulake case.

(Zubulake IV is cited as: Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003))