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E-discovery sanctions at all-time high

Boston (Dolan) – Sanctions in e-discovery cases are at an all-time high, according to a recent analysis published in the Duke Law Journal.

The article, “Sanctions For E-Discovery Violations: By The Numbers,” reviewed 401 cases involving motions for sanctions in cases with electronically stored information in federal courts prior to Jan. 1, 2010.

“Our analysis indicates that although the annual number of e-discovery sanction cases is generally increasing, there has been a significant increase in both motions and awards since 2004. Motions for sanctions have been filed in all types of cases and all types of courts,” the article said.

Sanctions were granted in 230 of the cases, with the most common reason for an award being failure to preserve relevant electronically stored information.

However, multiple types of misconduct often led to the sanctions, the article said, including failure to produce information and delays in production. Sanctions imposed ranged from dismissal of a case to adverse jury instructions to monetary awards.

The article found that appellate review of e-discovery sanction cases has been limited, identifying only 32 cases at the federal appellate level.

The last six years have seen an outbreak of cases, with the majority of the cases (354 of the 401 cases analyzed) occurring since 2004, and with cases involving e-discovery sanctions and sanction awards more than tripling since 2003.

Also, the number of cases is continuing to increase, with more e-discovery sanction cases in 2009 than in any prior year.

Employment was the most common type of case involving e-discovery sanctions (17 percent) followed by contract, intellectual property and tort cases.

Defendants are sanctioned roughly three times as often as plaintiffs (175 cases v. 53 cases), and the article also found that sanctions against counsel – though still uncommon – are on the rise.

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