The High Cost Of Lost Emails

My colleague Tom Freeman has written a useful bulletin [PDF] about severe penalties recently imposed by a federal district judge on UBS Warburg for destroying relevant emails while litigation was pending. (It's the kind of thing you want to show clients before this becomes an issue!)

On July 20, 2004, in her fifth written opinion in a "relatively routine employment discrimination dispute," Judge Shira A. Scheindlin of the U.S. District Court for the Southern District of New York imposed sanctions against UBS Warburg ("UBS") for destroying relevant e-mail messages during the litigation. The Court ordered UBS to pay expenses and attorney fees incurred by plaintiff Laura Zubulake in pursuit of the missing e-mails. Zubulake v. UBS Warburg LLC, et al., S.D.N.Y 02 CV 1234 (SAS) 7/20/04; 2004 U.S. Dist. LEXIS (S.D.N.Y, July 20, 2004). In addition to the monetary sanctions, Judge Scheindlin also granted plaintiff's request for additional discovery and for a jury instruction permitting a negative inference to be drawn from the missing evidence.

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[Link added] The Order [PDF] is definitely worth reading in its own right:

Commenting on the importance of speaking clearly and listening closely, Phillip Roth memorably quipped, "The English language is a form of communication!... Words aren't only bombs and bullets — no, they're little gifts, containing meanings!" What is true in love is equally true in law: lawyers and their clients need to communicate effectively with one another to ensure that litigation proceeds efficiently. When communication between counsel and client breaks down, conversation becomes "just crossfire," and there are usually casualties.

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[Footnotes omitted]