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VISUAL GUIDE

AN7 WAYS TO BE

SANCTIONED for E-Discovery Misconduct

UNDER THE NEW FRCP RULES

Some people believe that the new Rule 37(e) draws a bright line for what constitutes e-discovery sanctions. Unfortunately, this is not true. There are multiple avenues courts can take if they

really want to sanction you.

TEST 1ESI that should’ve

been preserved in anticipation of litigation was lost

TEST 3The loss of ESI can’t

be remedied via additional discovery which would restore

or replace the lost ESI

TEST 2Based on the party’s

failure to take reasonable steps to preserve the lost ESI

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“DUH EVERYONE KNOWS THIS” WAY

“THINK BEFORE YOU SIGN” WAY

“CONTROVERSIAL” WAY

“PRE-TRIAL SCHEDULING” WAY

“OBSTRUCTIONIST” WAY

“SWITCHAROO” WAY

“I INTENTIONALLY FORGOT TO TURN-OFF AUTO DELETE” WAY

Spoliation of Electronically Stored Information (ESI) —FRCP Rule 37(e)

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BONUS! US CODE SANCTION

Only applies to ESI and not tangible evidence.

No discretion is given to the judge in making this rule. No intent or bad faith is required. Courts must impose sanctions if no substantial justification given for violation of this rule.

Even though the advisory committee’s notes to Rule 37(e) state that the rule “forecloses reliance on inherent authority,” a few courts have felt differently relying on inherent authority for their basis for ESI spoliation sanctions.

If a party acts in bad faith in scheduling a pre-trial conference, then you can be sanctioned.

Sanctions for failing to comply with a court order could include: adverse inference instruction, case dismissal, contempt of court, etc.)

A court may exclude information that was undisclosed even if no motion to compel was brought by opposing counsel. Additionally, there is no requirement of bad faith to justify sanctions under this rule.

Example of bad faith behavior: “a party is not permitted to exploit the routine operation of an information system to thwart discovery obligations by allowing that operation to continue in order to destroy specific stored information it is required to preserve.”

Only attorneys can be sanctioned under Section 1927, which in some circuits requires a showing of bad faith conduct.

Sanctions Required if Discovery Request/Response is not “Complete and Correct” —FRCP Rule 26(g)(3)

A Court’s Inherent Authority to Issue E-Discovery Sanctions

Failure to Obey a Scheduling Order or You’re Unprepared for Pre-Trial Conferences —FRCP Rule 16(f)

Failure to Follow a Court Order —Rule 37(b)(2)

Failure to Disclose, to Supplement an Earlier Response, or to Admit —Rule 37(c)

Failure to Participate in Framing a Discovery Plan —Rule 37(f)

Authorizes the Court to Impose Sanctions Against Counsel —28 U.S.C. § 1927

By signing a discovery request/response, an attorney certifies that he/she made a “reasonable inquiry” to ensure that the discovery request is “complete and correct as of the time it is made.”

Generally … a constitutional court [may] do whatever is reasonably necessary to preserve and guarantee the efficient and orderly administration of justice. —Marquette Law Review, Courts: Inherent Power and the Administrative Court Reform, pg, 136

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Rule 16 sets the schedule for the course of e-discovery throughout the case. If you fail to comply with a court order or you’re “substantially unprepared to participate—or does not participate in good faith—in the [Rule 26(f)] conference,” then you may be sanctioned under this rule.

If a party or a party’s officer, director, or managing agent—or a witness designated…fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders.

If a party fails to provide information or identify a witness…, the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.

Sanctions only apply if the party lost information due to the “routine operation of an electronic information system” which was caused by bad faith behavior.

An attorney so multiplies the proceedings in any case unreasonably and vexatiously” may be subject to sanctions. Actions that may warrant sanctions

include baseless motions, frivolous discovery requests, and any action that unnecessarily prolongs the case or causes additional expense.