Zubulake v. UBS Warburg LLC

By the fifth Zubulake opinion the record showed that UBS employees had deleted relevant emails after the litigation hold issued, that backup tapes had gone missing, and that other responsive emails were produced years late or not at all. The question was who bore responsibility for a hold that existed on paper but failed in practice — and whether the failures now justified the adverse-inference instruction denied in Zubulake IV.

A litigation hold is the beginning of counsel's obligations, not the end. Counsel must become familiar with the client's retention policies and data architecture, speak with IT personnel and the key players, reissue the hold periodically, and see that the sources of relevant information are identified, searched, and safeguarded — including taking possession of relevant backup media where warranted. Announcing the hold and trusting employees to comply is, on this authority, not reasonable.

UBS's counsel had issued hold notices — and the deletions happened anyway, because no one confirmed that key custodians understood the duty or checked what they were actually retaining. One employee's 'archive' of relevant emails was never found because counsel never asked the question that would have surfaced it. The court traced each category of lost or late-produced email to a specific monitoring failure, then found the willful destruction that Zubulake IV's record had lacked.

The adverse-inference instruction was granted: the jury would be told it could infer the destroyed emails were unfavorable to UBS. The court also ordered UBS to pay the costs the failures had caused. The opinion's closing pages — a checklist of what counsel must now do — became the operating manual for litigation holds in federal practice, and its standards were later reflected in the 2006 and 2015 amendments to the Federal Rules of Civil Procedure.