Zubulake VI: Court Rules on Various Motions in Limine and Precludes Admission of Certain Evidence Unless Defendants “Open the Door”

Zubulake v. UBS Warburg LLC., 382 F.Supp.2d 536 (S.D.N.Y. 2005)

In her sixth opinion in this case, Judge Scheindlin ruled on the parties’ motions in limine, several of which related to e-discovery issues that were the topics of prior decisions:

1. Defendants moved to preclude the introduction of evidence regarding the court’s previous decisions in the case, including the imposition of sanctions on UBS. Granting the motion, the court agreed with defendants that the earlier decisions were irrelevant to plaintiff’s discrimination claims and would unfairly prejudice UBS. The court noted that the jurors would be told all they need to know through the evidence admitted at trial and through the court’s charge, and that there was no need to reference the court’s earlier decisions.

2. Defendants also sought to preclude the introduction of correspondence between counsel on discovery matters, arguing that such evidence was irrelevant to plaintiff’s claims and the adverse inference instruction. The court noted that the adverse inference instruction the jury would receive contained the following statement: “You may also consider whether you are satisfied that UBS’s failure to produce this information was reasonable.” The court concluded that, in light of the instruction, plaintiff would be entitled to introduce correspondence between counsel on discovery matters if defendants opened the door by introducing evidence as to whether their failure to produce was reasonable. The court stated that if defendants decided not to offer proof that their failure to produce certain emails (or late production of other emails) was justified, plaintiff would not be permitted to introduce any of the correspondence between counsel in her case in chief.

3. Defendants sought to preclude any evidence concerning the failure by UBS to preserve several monthly back-up tapes. The court observed that the destruction of some of the backup tapes could be relevant to UBS’s justification for failing to produce some of the emails sent or received in August and September 2001. The court concluded: “However, for the reasons stated with regard to attorney correspondence, the choice as to whether to introduce such evidence is left to defendants. Plaintiff can introduce evidence of backup tape destruction if, and only if, defendants first open the door to such evidence.”

4. Finally, defendants sought to preclude testimony from its counsel at trial, since plaintiff had indicated that she intended to elicit testimony from defendants’ counsel regarding the preservation of e-mails and back-up tapes. Defendants claimed that such testimony would be cumulative as defendants already produced documents regarding UBS’s official retention policies and the requests made to employees to retain documents. The court noted that the risk that privileged communications could be probed during trial was arguably too great to permit plaintiff to call opposing counsel to testify. The court stated that it did not see “any legitimate need plaintiff may have for calling opposing counsel given the extensive discovery on the issue of e-mail and back-up tape preservation and retention,” and ruled that plaintiff was therefore precluded from calling defense counsel as witnesses.

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