By Tim Rollins
Now that we have your attention, we assume (of course) that you don’t want to earn an e-discovery sanction, and you’re reading this article to understand what not to do, because, after all the ramifications of an e-discovery sanction can be quite expensive. Fortunately, by understanding what judges think—and more importantly, what they do—you can make sure that you avoid sanctions, and lesser penalties, by making sure your e-discovery house is in order.
In Exterro’s and EDRM’s 2019 Federal Judges Survey, we learned not only what circumstances prompt judges to impose sanctions, but also how often judges tend to take affirmative action (e.g., additional conferences, warnings) related to e-discovery problems. This survey, which was by far the largest of our five annual judges surveys, compiles data from over 260 responding federal judges—and it’s available for download now.
Judges don’t actually issue e-discovery sanctions often; only 13% of the responding judges sanctioned a lawyer for e-discovery misconduct in the year prior to taking the survey. However, they do intervene fairly often in e-discovery by requiring additional conferences and issuing warnings. Almost half (47%) have done so three or more times in that same span of time.
But what actions rise to the level of meriting sanctions? The survey polled judges on five potential missteps, and one clearly rose to the top (or sunk to the bottom) as clearly earning the judges’ ire. Let’s review these mistakes in order, saving the most egregious one for last:
- Not having a defined process for preserving data. Only 16% of judges felt that this lack of preparation for preservation obligations merited sanctions. This makes sense, as failure to prepare for eventual litigation hardly demonstrates “intent to deprive.”
- Boilerplate language in objections. While stock responses and objections are pet peeve for many judges, only 25% of the surveyed judges felt they merited sanctions, presumably including the one who commented, “I detest boilerplate discovery responses.” After all, such language is more indicative of laziness than malice… and laziness can usually be remedied with less extreme measures than sanctions.
- Failure to communicate with custodians resulting in spoliation. Once spoliation is a factor, many more judges are prepared to issue sanctions, with 49% indicating this mistake is worthy of sanctions.
- Lack of preservation once duty was triggered. A majority of judges, 52% found this failure to meet the fundamental duty to preserve data merited sanctions. While perhaps surprising, as the duty to preserve relevant ESI was made clear in Judge Shira Scheindlin’s landmark rulings on Zubulake v. Warburg, almost half of judges were unwilling to attribute to malice that which could be equally explained by incompetence.
- Intentional misconduct that causes spoliation. Clearly, once judges feel they can ascertain intent in a party’s actions, they are willing to impose sanctions. With 86% of the judges responding to this misstep, it was far and away the most likely cause of sanctions.
What conclusions can attorneys and other e-discovery practitioners draw from this data?
First of all, bad faith and poor communication are the leading causes of sanctions. Follow the spirit as well as the letter of the rules. 67% of judges will use inherent authority to issue sanctions if necessary.
Next, judges will act when necessary. While only 13% of judges have issued an e-discovery sanction, 74% have taken affirmative action (e.g., required additional conferences, issued warnings) to solve e-discovery problems multiple times in the past year.
Be careful with basic data sources. Additional data revealed that judges found email, text messages, mobile data, and difficult to access data are those most often spoliated.
Do these lessons and data points comport with what other e-discovery experts have seen? That seems to be the case. Gareth Evans, Partner at Redgrave LLP, observed, “Other than the extreme cases of rogue actors intentionally destroying evidence, what most often gets parties in trouble is a pattern of repeated preservation and production failures coupled with poor communication with the court and opposing litigants. The worst sanctions decisions are invariably when the judge has become very upset with a party’s many failures. The best ways to avoid these pitfalls are to have processes and technologies in place to handle e-discovery and to involve experienced and knowledgeable e-discovery counsel.”
To find out more about what else judges think, say, and do relating to e-discovery, download Exterro’s and EDRM’s 2019 Federal Judges Survey today.