Beginning with U.S. District Court Judge of the Southern District of New York Shira Scheindlin’s landmark series of decisions in Zubulake, the specter of e-discovery sanctions seemed to hang like a cloud over civil litigation and civil litigators, threatening the unwary with an avalanche of draconian penalties for not understanding the technical and ever-expanding world of ESI.
The most recent sanctions cases, however, tell a different, although perhaps not surprising, story. As with traditional discovery, courts asked to impose sanctions look carefully at the facts and, absent fairly obvious and egregious misconduct, seem reluctant to impose sanctions for e-discovery misconduct. E-discovery obviously has required attorneys to become familiar with and competent to handle technical issues and to learn how to conduct a search of electronic media. But sanctions cases tend to relate to basic principles of discovery, not complex technical issues. Issue an appropriate litigation hold notice, make sure the key people are aware of it and make sure it is being followed and that documents are not being destroyed. These straightforward, almost routine, rules which apply equally to traditional discovery likely will protect lawyers and their clients against any onslaught of e-discovery-related sanctions. Indeed, most e-discovery sanctions seem to occur not because lawyers or their clients are unaware of technical advances in the world of e-discovery, but rather because e-discovery made available the proof that sanctions were appropriate usually because a party failed to follow basic principles.
