Nature of the Case
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Facts
P was hired by D. Seven years later, a new manager took over her department and immediately 'undermined P's ability to perform her job by, inter alia: (a) ridiculing and belittling her in front of co-workers; (b) excluding her from work-related outings with male co-workers and clients; (c) making sexist remarks in her presence; and (d) isolating her from the other senior salespersons on the Desk by seating her apart from them.' She was the only female in the group. No such actions were taken against any of P's male co-workers. P filed a charge of (gender) discrimination with the EEOC on August 16, 2001. On October 9, 2001, P was fired with two weeks' notice. P sued D for gender discrimination and illegal retaliation. D denied the allegations. D claims that its manager was not unlawfully discriminatory because he treated everyone equally badly. On the one hand, UBS points to evidence that Chapin's anti-social behavior was not limited to women: a former employee made allegations of national origin discrimination against Chapin, and a number of male employees on the Desk also complained about him. On the other hand, Chapin was responsible for hiring three new females employees to the Desk. P has an email suggesting that she be fired 'ASAP' after her EEOC charge was filed, in part so that she would not be eligible for year-end bonuses. P contends that key evidence is located in various e-mails exchanged among employees that now exist only on backup tapes and perhaps other archived media. P launched discovery and encountered serious problems. D produced some materials. An initial agreement was reached where D agreed unconditionally to produce responsive e-mails from the accounts of five individuals named by P: Matthew Chapin, Rose Tong, Vinay Datta, Andrew Clarke, and Jeremy Hardisty. D was to produce such e-mails sent between August 1999 (when P was hired) and December 2001 (one month after her termination), to the extent possible. P knew that there were additional responsive e-mails that D had failed to produce because she herself had produced approximately 450 pages of e-mail correspondence. D produced no additional e-mails from what it initially produced and insisted that its initial production (the 100 pages of e-mails) was complete. It is clear that D never searched for responsive e-mails on any of its backup tapes. D informed P that the cost of producing e-mails on backup tapes would be prohibitive (estimated at the time at approximately $300,000.00). D claims that restoring those e-mails would cost approximately $175,000.00, exclusive of attorney time in reviewing the e-mails. P moved for an order compelling D to produce those e-mails at its expense. D was ordered to produce for deposition a technical manager who was deposed on January 14, 2003. E-mails were backed up in two distinct ways: on backup tapes and optical disks. All e-mails sent or received by any D employee are stored onto backup tapes. The backup process is entirely automated. D backed up its e-mails at three intervals: (1) daily, at the end of each day, (2) weekly, on Friday nights, and (3) monthly, on the last business day of the month. Nightly backup tapes were kept for twenty working days, weekly tapes for one year, and monthly tapes for three years. Some e-mails that were deleted from the server were never backed up. If a user both received and deleted an e-mail on the same day, it would not reside on any backup tape. Similarly, an e-mail received and deleted within the span of one month would not exist on the monthly backup, although it might exist on a weekly or daily backup if those tapes still exist. Each backup tape routinely takes approximately five days to restore. A program called Double Mail is used to extract a particular individual's e-mail file. That mail file is then exported into a Microsoft Outlook data file, which in turn can be opened in Microsoft Outlook, a common e-mail application. A user could then browse through the mail file and sort the mail by recipient, date or subject, or search for keywords in the body of the e-mail. It was possible to search through the tapes from the relevant time period and determine that the e-mail files responsive to P's requests are contained on a total of ninety-four backup tapes. On optical disks, D has every e-mail sent or received by registered traders (except internal emails) during the period of P's employment, even if the e-mail was deleted instantaneously on that trader's system. The optical disks are easily searchable using a program called Tumbleweed.
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