Zubulake v. UBS Warburg LLC

Laura Zubulake sued UBS for gender discrimination. During discovery it emerged that monthly backup tapes containing relevant emails had been recycled under the bank's ordinary retention schedule, and that some emails existed nowhere else. The question was when UBS's duty to preserve those tapes arose — at the EEOC charge, at the complaint, or earlier — and whether recycling them warranted an adverse-inference instruction.

A duty to preserve attaches when a party reasonably anticipates litigation, not when litigation begins. From that moment the party must suspend routine destruction and impose a litigation hold. The hold generally does not reach inaccessible disaster-recovery backup tapes — with one exception the court created here: tapes holding the documents of identifiable key players must be preserved when that information is not available anywhere else.

The court fixed the trigger before any formal filing: by April 2001 — four months before Zubulake's EEOC charge — relevant UBS employees anticipated she might sue, and internal emails showed it. From that date the recycled tapes should have been held. But an adverse-inference instruction requires more than destruction: the movant must show the lost evidence would have supported her case. Zubulake could not yet make that showing, so the severest remedy was denied even though the duty had plainly been breached.

No adverse inference — yet. The court ordered UBS to bear the costs of re-deposing witnesses about the newly restored emails, and its restatement of the preservation duty became the standard other courts adopted. The 'yet' mattered: in Zubulake V, decided nine months later on a fuller record, the instruction was granted.