Zubulake v. UBS Warburg LLP

  • Facts: π alleged that ∆ discriminated against her based on gender.
    • π asked for emails about such from ∆. ∆ didn't give, so π moved to compel production. ∆ said they didn't have those emails.
      • The company storage and backup drives were wiped of these emails.
      • Sus
  • Issue:
  • Rule: Doctrine of Spoliation
    • Parties have a duty to preserve evidence/information in pending and/or reasonably foreseeable litigation.
    • "Spoliation is the destruction or significant alteration of evidence or the failure to preserve property for another's use as evidence in pending or reasonable litigation."
    • The doctrine exists under the formal power of the court in FRCP 37, but it also exists because it has to in order to disincentivize destruction of or failure to produce evidence in discovery.
      • "The authority of sanction . . . for spoliation arises jointly under the Fed. R. Civ. P. and the court's inherent power to control the judicial process."
  • Holding:
  • Reasoning:
  • Judgment:

NOTES:

  • Does anything require UBS to hand over information here?
    • No—spoliation only requires that preservation of evidence occurs, not that anything is necessarily handed over.
  • For criminal matters, a similar doctrine exists:
    • 18 U.S.C. § 1512(b)—criminalizes general destruction of evidence
    • 18 U.S.C. § 1512(c)—criminalizes destruction of evidence for accountants
    • 18 U.S.C. § 1520—criminalizes tampering with witnesses