Five or so years ago, legal professionals were hearing about “the end of sanctions.” Changes in the Federal Rules of Civil Procedure (FRCP), especially Rule 37(e)’s requirement of a determination of “intent to deprive” to levy the most severe sanctions, reduced the likelihood of litigants accidentally stumbling into an e-discovery catastrophe.

However, in recent years, talk of the demise of sanctions has lessened. A review of recent e-discovery case rulings reveals that sanctions remain a vital tool for the courts. While they may not be as frequent as they were prior to the 2015 FRCP Amendments, the risks remain high. Judges use sanctions to underscore key principles, and they won't hesitate to employ them when warranted.

Exterro’s E-Discovery Case Law Project reviewed 10 case rulings from 2019–2021 to identify the "red lines" courts are drawing.

What Got Parties Sanctioned?

The analyzed cases reveal several behaviors that lead to court-ordered penalties:

• Destruction of Evidence: In QueTel Corp v. Hisham Abbas, defendants destroyed a computer and deleted emails after receiving a cease-and-desist letter. This letter was enough to trigger a "reasonable expectation of litigation" and the duty to preserve.
• Destruction of an Encryption Key: In Doubleline Capital, LLP v. Odebrecht Finance, the intentional destruction of a key led to a request to present evidence of that destruction to a jury.
• Failure in the “Duty to Preserve”: Failing to follow through with the preservation of relevant data after a legal hold notice was issued proved costly in Bolding v. Banner Bank.
• Sidestepping Preservation with Ephemeral Apps: As seen in Federal Trade Commission v. Vyera Pharmaceuticals, LLC, using apps like WhatsApp on contraband or personal devices to avoid oversight is a fast track to sanctions.
• Perjury: Lying about spoliating ESI resulted in a full case dismissal in Williams v. American College of Education.

How to Avoid Sanctions: The Keys to Defensibility

The common thread is that sanctions usually arise from failures early in the e-discovery process—specifically during preservation and collection. To remain on the right side of the law, organizations must implement strong, verifiable, and defensible legal hold processes:

1. Notify & Remind: Send clear legal hold notices to custodians and issue periodic reminders.
2. In-Place Preservation: Protect data from accidental or intentional deletion at the source.
3. Suspend Retention Policies: Ensure that automated deletion or "recycling" policies are suspended for any data subject to a hold.
4. Cross-Departmental Communication: Ensure Legal, HR, and IT are aligned so that data isn't lost during employee departures or system migrations.

The 2026 Perspective: AI and the "Intent to Deprive"

As we move through May 2026, the standard for "intent to deprive" is being tested by the use of AI. Courts are increasingly looking at whether an organization’s AI-driven data retention policies were "set and forgotten" or actively managed.

Documented preservation policies are still viewed as evidence of good faith. By showing that you have a consistent, technology-backed process, you demonstrate to the court that you had no intent to deprive the opposing party of evidence, even if a technical error occurs.

Learn more about recent trends in e-discovery sanctions in the Exterro whitepaper: Don’t Get Sanctioned Like These Parties!

Has your organization updated its legal hold process to specifically account for ephemeral messaging data from apps like Slack or WhatsApp?

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