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Avoid Sanctions with these Lessons from the Top E-Discovery Cases of 2018

Created on November 30, 2018

Director of Marketing Programs at Exterro

As the year is winding down, it's time to take stock of 2018. What are the biggest stories in e-discovery case law of the year, and more importantly, what are the lessons we can learn from them? Surprisingly enough, even three years out from 2015's Federal Rules of Civil Procedure amendments, Exterro's E-Discovery Case Law Library readers are still more interested in sanctions than any other topic. 

In looking over the cases, we decided to talk with one of the biggest names in e-discovery, Hon. Andrew Peck, retired US Magistrate Judge (S.D.N.Y.) and currently senior counsel at DLA Piper, about what conclusions we could draw from professionals' interest in these particular rulings. He observed three key lessons you can take away from this year's biggest e-discovery cases, and we've summarized them here for you.

  1. Be precise and factual with the court. Judge Peck explains, "Candor with the court and providing facts, not boilerplate, is crucial to success (and misleading, or to put it bluntly, lying to the Court is never a good idea)." The new Rules require specificity in both motions and objections, and of course it should be common knowledge and courtesy that fabrications are disqualifying. However, as Michael E. Davis, et al. v. Electronic Arts, Inc. showed, candor and specificity can sometimes be in short supply. This extends to stonewalling or failing to respond to requests.
  2. Don't be vague or excessive with either requests or objections. "Courts are looking more carefully at overbroad discovery requests, while continuing to find boilerplate Rule 34 objections to be meaningless," he continues. In Re: Volkswagen "Clean Diesel" demonstrated the futility of asking for discovery of data without specifying why it is pertinent to the specific matter at hand, with the court explaining that production requests must "describe with reasonable particularity each item or category of items to be inspected."
  3. Understand the grounds upon which sanctions can be ordered. Judge Peck explains the distinction as follows, "Sanctions cases under Rule 37(e) continue to explore the sometimes fine line between appropriate preservation (no relief), failure to appropriately preserve but no “intent to deprive” (hence only remedies under Rule 37(e)(1)), and “intent to deprive,” leading to serious sanctions (under 37(e)(2))." However, bear in mind that even remedial sanctions, owing to the failure to appropriately preserve, can be quite substantial, as Klipsch Group, Inc. v. ePRO E-Commerce demonstrates. While the $2.7 million sanction dwarfed the amount of actual damages in the case, they were justified because of the costs incurred by the plaintiff in trying to remedy the discovery misconduct.

If you want all these cases (and more) in one place, we've compiled the top 10 cases of the year (based on pageviews and downloads) into a white paper, which you can download here.