Are lawyers getting sanctioned for electronic-discovery violations more than before? So it seems, according to a study done by King & Spalding and reported in the Duke Law Journal. Such results are puzzling, considering that e-Discovery was supposed to simplify litigation.
More Sanctions for e-Discovery
The report reviewed a comprehensive survey of written opinions from cases in federal courts prior to January 1, 2010 -- including motions for sanctions relating to ESI. They analyzed each case for various factors like type of case, sanctioning authority, sanctioned party, sanctioned misconduct, sanction type and sanctions to counsel, among others. What they found was staggering.
Of their analysis of pre-2010 cases, there were more e-discovery sanction cases and more e-discovery sanction awards in 2009 than in any prior year. In fact, there were more e-discovery sanction cases in 2009 than in all years prior to 2005 combined. To add insult to injury, the report also found thatfailure to produce ESI was the most common basis for sanctions.
Yes, you read that correctly.
e-Discovery is Only as Good as its Oversight
Theoretically, e-Discovery should establish a workflow so that data can be searched, collected, reviewed and analyzed in a manner that is both efficient and effective. However, considering that companies have more data than ever to comb through and classify, as well as conflicts between those implementing the e-Discovery infrastructure and those managing the workflows, e-Discovery isn’t always the magic bullet many believe it to be.
According to the study authors, one of the reasons that sanctions may be increasing is that often“more attention is focused on e-discovery than on the merits with a motion for sanctions an increasingly common filing.” Additionally, of the cases in which sanctions were awarded, the most common misconduct was failure to preserve ESI.
While the study doesn’t offer much advice about how e-Discovery solutions can help solve the problem, it does highlight the need for more uniform standards and guidelines to steer counsel through the complex tasks of discovery.
Ultimately, no matter the e-Discovery platform in use, companies need to take more control of how data is managed across the EDRM. Like most tools, e-Discovery is not magic, but if used effectively, it can help to manage risk and limit sanctions.