As the old saw goes, “you don’t need to be a weatherman to know which way the wind blows.” I recently read the recent Duke Law Journal article “Sanction for E-Discovery Violations: By the Numbers.” And, my initial reaction (as someone who tries to read all the electronic discovery cases as they come off the presses) wasn’t one of surprise. For me, most of the interesting e-discovery cases all seem to involve sanctions as they usually provide lessons about “worst” practices, from which we hopefully can infer “best” or at least “better” practices.
But, after a deeper dive into the piece I was fascinated by the metrics and granular trending analysis. The article summarized 401 cases involving motions for sanctions related to discovery of electronically stored information (ESI) in federal courts prior to January 1, 2010:
“We analyzed these cases for a variety of factors, including sanctioning court, sanctioning authority, sanctioned party, sanction type, and sanctioned misconduct. Our analysis indicates that although the annual number of e-discovery sanction cases is generally increasing, there has been a significant increase in both motions and awards since 2004. Motions for sanctions have been filed in all types of cases and all types of courts. The sanctions imposed against parties in many cases are severe, including dismissals, adverse jury instructions, and significant monetary awards. Sanctions against counsel, although uncommon, are on the rise as well. All the while, the safe harbor provisions of Rule 37(e) of the Federal Rules of Civil Procedure2 have provided little protection to parties or counsel.
To Continue Reading: Click Here
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Source: eDiscovery 2.0
By: Dean Gonsowski
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