If it seems like there’s been a lot of eDiscovery sanctions lately, it’s not an illusion. The number of parties and lawyers being hit with sanctions and adverse inferences for eDiscovery failure are, in fact, on the rise. Obviously, sanctions are a bad thing, but it’s also a sign of maturity in the law.
Last week, guest blogger Joshua Gilliand of Bow Tie Law, wrote a guest post that took a deep look at sanctions issued in the recent Coquina Invs. v. Rothsteinsuit, investigating how well-meaning lawyers wound up getting sanctioned for eDiscovery failures. However, sanctions like this are not happening because lawyers are being blindsided by new complications in litigation. These penalties are being imposed because attorneys are failing to fulfill their well-defined and obvious obligations.
Defining What is Reasonable
Civil litigation exists largely because of one word: reasonable. Civil litigators have to prove their client had a “reasonable expectation,” or demonstrate “reasonable” damages from an action, or had a “reasonable expectation.”
The judge sits in the middle, balancing the competing claims and counter claims, hopefully assigning a reasonable judgement.
However, you can argue that in eDiscovery, what is reasonable is not really up for debate any longer. In fact, most sanctions seem to be the result of mistakes or inexplicable lapses to perform well-defined, routine, and obvious tasks.
For example, everyone knows that Samsung lost it’s massive patent infringement suit with Apple. What many people are forgetting is that Samsung dug itself a deep hole at the outset with a major eDiscovery failure, resulting in an adverse inference.
What was the mistake? Probably the most basic and obvious function for litigators in the discovery phase: getting the client to stop deleting emails in anticipation of litigation.
It Doesn’t Get Much Clearer
When eDiscovery was still a nascent industry, judges were creating the rules and obligations from scratch. Now, the rules for sanctions and adverse inferences is clear. In fact, in the recent Stephen Omogbehin v. Maria Cino employment discrimination case, the court simply applied a standing four-prong test to determine whether spoliation occurred.
The test is simply: demonstrate that  evidence was in the party’s control;  the evidence is relevant to the claims or defenses in the case;  there has been actual suppression or withholding of evidence; and,  the duty to preserve the evidence was reasonably foreseeable to the party.
Other sanctions are being issued for blatant spoliation. In the recent EEOC v. Fry’s Electronics the court issued sanctions against the defendant in a sexual harassment case for intentionally withheld this information and the related documents from discovery. The sanctions include a $100,000 penalty, although the court stopped short of entering a default judgment against the defendant.
eDiscovery is a complicated business, so missteps are to be expected. But as Joshua laid out last week, mistakes are most likely the result of carelessness or misbehavior, not because the law is confusing.
In fact, the reason we see a high number of sanctions is not because the law is ill-defined, but because the courts no longer have patience for such failure. The updated Federal Rules of Civil Procedure have been in effect since 2006, meaning lawyers have had more than six years to internalize best practices in discovery of electronic records. In fact, lawyers who play by those rules will have an advantage over any adversaries that try to take short cuts or ignore the existing body of case law.