But District Judge Shira Scheindlin ruled that the jury was not to take the destruction of the back-up e-mail tapes as inferring that they contained evidence favouring plaintiff Laura Zubulake.
The case dates back to mid-2001 when Zubulake began a sex discrimination case against the investment bank. She was fired about two months later from her $650,000 job.
Much of the evidence relating to the case is e-mail evidence found on the company's back-up tapes, and the judge has ruled on three previous occasions on different aspects relating to the discovery of evidence from these tapes.
The most important ruling, in July this year, related to the costs of restoring and accessing the evidence from the back-up tapes – and found that Zubalake must pay 25% of those costs herself.
The restoration process was carried out, with the discovery that some e-mails had been deleted and some of the tapes themselves were missing. Zubulake then asked the court to award damages against the bank in respect of the missing evidence.
On Wednesday last week, judge Scheindlin refused to grant the request.
According to a report on Law.com, the judge found that UBS Warburg should have preserved the evidence, as it should have been aware that it might be needed in future legal action – particularly as the missing e-mails were sent by "key players" in the action. In addition, UBS Warburg had not complied with it's own e-mail retention policy, said the court, which required that tapes be kept for three years.
Law.com reports that the bank was held to be negligent for destroying tapes relating to colleagues of Zubulake, and grossly negligent for misplacing human resources back-up tapes relating to the person investigating the sex discrimination claim.
Despite this, the judge did not instruct the jury to make an adverse inference from the lost tapes, as requested by Zubulake. This was because Zubulake had not shown that the missing e-mails would actually aid her case.