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Further <i>Zubulake</i> Ruling
In the context of electronic discovery but with implications beyond that setting, Judge Shira Scheindlin issued a further ruling in the hotly contested Zubulake v. UBS Warburg litigation outlining a defendant's obligation to preserve discovery following notice of a possible litigation. 2003 WL 22410619 (S.D.N.Y. 10/22/03) (Zubulake IV). In doing so, Judge Scheindlin has once again mapped the landscape and advanced the jurisprudence relating to the preservation, production, and payment of the costs of electronic discovery.
Key to this decision is the fact that defendant UBS failed to preserve certain electronic discovery responsive to plaintiff's discovery requests. For example, a number of backup computer tapes were missing and isolated e-mails, which appeared to be directly relevant to plaintiff's claims, were deleted despite a direction from defendant's counsel to preserve relevant documentation. The question for the court in Zubulake IV was: In what way, if at all, should UBS be punished for failing to preserve discovery? “It goes without saying that a party can only be sanctioned for destroying evidence if it had a duty to preserve it. If UBS had no such duty, then UBS cannot be faulted.”
Judge Scheindlin then addressed the question of the duty to preserve evidence by raising two sub-questions: when does the duty to preserve attach, and what evidence must be preserved? Judge Scheindlin concluded that the duty to preserve evidence took root when the relevant people at UBS first reasonably anticipated litigation, which in this case was 4 months before the underlying charge before the EEOC was filed.
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