Yes, the company should be punished, and its lawyers didn't do enough to prevent the problem. The judge explained that lawyers have to be hands-on. They need to talk to the important employees, find out how they save files, and make sure computer backups are kept safe. Because UBS employees deleted emails on purpose after being told not to, the judge called their actions 'willful.' This is like purposefully hiding evidence. As a punishment, the judge decided that when the case goes to trial, the jury will be told they can assume the missing emails would have been bad for UBS. The judge also made UBS pay for Zubulake's lawyer's fees for having to deal with this whole mess.

Yes, UBS messed up saving and promptly providing relevant information, because some employees deleted emails when they weren't supposed to, and the lawyers didn't do a good enough job making sure everyone followed the rules. Both the lawyers and the company didn't communicate well, and didn't do what they were supposed to do. This was unfair to Zubulake, so the court is punishing UBS.

Yes, counsel has an affirmative duty to actively monitor a client's compliance with a litigation hold, and sanctions are appropriate for willful spoliation. While the duty to preserve rests with the party, counsel must take active steps to ensure that the party's preservation obligations are met. It is not sufficient for counsel to simply issue a litigation hold and expect compliance; they must actively oversee the client's efforts. The court found that while UBS's counsel issued multiple hold notices, they failed to communicate the hold to all key players, failed to adequately investigate how certain employees stored data, and failed to safeguard relevant backup tapes. The court concluded that the UBS employees' actions of deleting emails in defiance of explicit instructions constituted willful spoliation. Because the destruction was willful, the lost evidence is presumed to be relevant and unfavorable to UBS. Therefore, an adverse inference jury instruction, along with monetary sanctions to cover the costs of re-depositions and the motion itself, is the appropriate remedy.

Yes, UBS failed to preserve and timely produce relevant information because certain employees deleted relevant emails in defiance of counsel's instructions, and counsel failed to properly oversee UBS's preservation and production efforts in several key respects. The conduct of both counsel and client demonstrates a failure to communicate and a failure to heed counsel's directives. As a result, Zubulake has been prejudiced and sanctions are warranted.

Zubulake v. UBS Warburg LLC (Zubulake V)

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