Zubulake v. UBS Warburg, LLC

United States District Court for the Southern District of New York · 2005 · Civil Procedure

231 F.R.D. 159 (2005)

Updated July 19, 2026

Civil ProcedureAmendment of pleadingsAffirmative defensesPrejudiceDelayRule 15(a)leave to amendaffirmative defense

Facts

Nearly three years after the case was filed, and after discovery had closed and partial summary judgment had been decided, defendants sought to amend their answer to assert an after-acquired evidence defense. Defendants claimed plaintiff misrepresented on her UBS employment application the dates and circumstances of her departures from Credit Suisse First Boston and Salomon, and contended UBS would have terminated her immediately had it known the truth. Defendants had learned of the alleged after-acquired evidence in March 2003 but did not move to amend until twenty-two months later, on the eve of trial. Plaintiff opposed, arguing that the amendment would require substantial new discovery from non-parties and UBS personnel and would delay trial.

Issue

Should the court grant defendants leave under Rule 15(a) to amend their answer to add an after-acquired evidence affirmative defense when defendants knew of the underlying facts for twenty-two months, offered no explanation for the delay, and the amendment would require reopening discovery shortly before trial?

Rule

Although Rule 15(a) provides that leave to amend should be freely given when justice so requires, a court may deny amendment when there is inordinate and unexplained delay, the movant knew or should have known the underlying facts earlier, and the amendment would unduly prejudice the opposing party. Prejudice is assessed by considering whether the amendment would require significant additional discovery and trial preparation, significantly delay resolution of the dispute, or otherwise disrupt final disposition; prejudice is especially acute when discovery is complete and trial is near.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a wrongful-termination suit pending in Chicago federal court, Lakefront Analytics filed its answer in 2022. By April 2023, its lawyers had personnel records suggesting that plaintiff Nina Patel had falsified a professional certification, but the company waited until three weeks before a scheduled 2025 trial—after discovery had closed and summary judgment had been decided—to move to amend its answer to add an affirmative defense that would sharply limit damages. The amendment would require depositions of former employers and new discovery from the company’s human resources staff.

How should the court most likely rule on the motion to amend?

Explanation. Rule 15(a) is liberal, but amendment may be denied where there is inordinate, unexplained delay and undue prejudice. The majority emphasized that prejudice is especially acute when discovery is complete, summary judgment has been decided or filed, and trial is near. Here, the movant knew of the facts long before the motion and the amendment would require substantial additional discovery and likely delay final disposition, so denial is most likely.