Sanctions for E-Discovery Violations: By the Numbers
Willoughby, Dan H., Jr., Jones, Rose Hunter, Antine, Gregory R., Duke Law Journal
This Article reviews our comprehensive survey of written opinions from cases in federal courts prior to January 1, 2010, involving motions for sanctions relating to the discovery of electronically stored information (ESI). We analyzed each case for various factors, including date, court, type of case, sanctioning authority, sanctioned party, sanctioned misconduct, sanction type, sanctions to counsel, if any, and the protections provided from sanctions by Federal Rule of Civil Procedure 37(e). The survey identified 401 sanction cases and 230 sanction awards and showed that sanction motions and awards have increased over time, particularly in the last five years. Sanctions against counsel are rare but are also increasing. Sanction motions have been filed in all types of cases and in courts across the country. Failure to produce ESI is the most common basis for sanctions. Courts have used a variety of different rules, statutes, and powers to sanction parties for e-discovery violations, including Rule 37 and the inherent power of the court, and courts impose many different sanction types on e-discovery violators, including the severe sanctions of dismissal, default judgment, adverse jury instructions, and sizeable monetary awards. Rule 37(e) has not provided broad protection from such sanctions.
TABLE OF CONTENTS Introduction I. E-Discovery Sanctions Have Increased II. E-Discovery Sanction Cases Are a Diverse Docket A. E-Discovery Sanction Motions Are Before All Courts B. E-Discovery Sanction Motions Are in All Types of Cases C. E-Discovery Sanction Motions Are Granted through Varying Authority D. E-Discovery Sanction Motions Are Awarded against Defendants More Often III. Failure to Preserve ESI Is the Most Prevalent Sanctionable Conduct IV. Courts Have Used a Wide Range of Sanctions for E-Discovery Violations A. Dismissals B. Adverse Jury Instructions C. Monetary Awards V. Counsel Sanctions Are Increasing VI. Rule 37(e)'s Safe Harbor Provides Limited Protection Conclusion Appendix A: All Cases Appendix B: Overall Statistics Appendix C: Cases Where Sanctions Were Awarded Appendix D: Monetary Sanctions
E-discovery sanctions are at an all-time high. We identified 230 sanction awards in 401 cases (1) involving motions for sanctions relating to the 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 Procedure (2) have provided little protection to parties or counsel.
Producing parties have struggled to comply with ever-expanding and increasingly complex responsibilities as ESI has played a predominant role in pretrial discovery. The liberal scope of discovery in federal courts, when coupled with ESI's defining characteristics--its high volume, broad dispersal, and dynamic nature--also confounds efforts to conduct discovery effectively and economically. Governing rules (3) have been amended (4) and supplemented (5) to provide a procedural framework "to secure the just, speedy, and inexpensive determination" (6) of discovery disputes involving ESI. Most notably, substantial amendments were made to the Federal Rules of Civil Procedure in 2006 to address the discovery of ESI in federal courts. …