Last week, Logikcull released its “The End of Sanctions?” report, detailing the extreme decline in spoliation sanctions over the past three years. That exhaustive new research shows that Rule 37(e) sanctions have declined by 35 percent in recent years, with the most severe sanctions denied in whole or in part in four out of every five cases last year.
That dramatic decline in sanctions, coupled with a growth in expertise, and the rise of easy-to-use discovery software has led to a significant “de-risking” of eDiscovery and allowed legal professionals to move beyond a fear-based approach to the discovery process.
Of course, the decline in spoliation sanctions does not remove all the challenges from discovery. Even when a party defeats a sanctions motion, for example, the time and expense involved in doing so are not minimal. And there are also ever-increasing sources of “difficult data” to deal with, the type data that can frustrate traditional approaches to discovery, such as Slack data, IoT data, or even mobile data.
Nonetheless, there’s no denying that the decline in sanctions has created new opportunities for innovative practitioners and removed much of the fear that once permeated the bar’s approach to discovery. It has, in the words of Mira Edelman, been a “freeing” force. Senior Counsel and Discovery Manager at Google when the amendments to Rule 37(e) went into effect, she describes the trends identified in “The End of Sanctions?” report as giving her team “the legal authority to make decisions that weren’t driven by uncertainty, to focus on creating defensible workflows, and to begin thinking about corporate information governance.”
The report, which includes both a high-level analysis of recent sanctions trends as well as in-depth review of post-2015 Rule 37(e) case law and a full appendix of the nearly 300 cases consulted, is a must-read for today’s legal professionals. But for a quick introduction to the report and its implications, watch the video featuring Robert Hilson above.
It’s almost everything you need to know about the changing sanctions regime, in under 10 minutes.
As Hilson explains above, these changes mark a significant shift away from how eDiscovery has been approached in the past. He should know. Sr. Marketing Director at Logikcull and former executive director of the Association of Certified eDiscovery Professionals, he has seen the industry evolve from one dominated by fear, uncertainty, and doubt, to the more reasoned, “risk-aware rather than risk-averse” approach to discovery we’re increasingly seeing today.
Judges Respond to “The End of Sanctions?” Report
What do the judges who have helped shape the discovery process over the past decades think about the dramatic changes “The End of Sanctions?” report identifies? We asked them. The Hon. John M. Facciola, James C. Francis, and Andrew J. Peck, three judges who have had an enormous impact on eDiscovery jurisprudence, agreed to share their reactions publicly.
“I always found that the fear of sanctions was an unreasonable motive that drove preservation standards that were self-defeating. The more one served, the more expensive it was to find anything. We can hope that technology will end that but we are still imprisoned in many ways by our own fears.”
- U.S. Magistrate Judge John M. Facciola (Ret.), D.D.C.
"Too often, judicial policy is based on what is, at best, 'anecdata.' Solid empirical research like this is too rare, and often gets drowned out by the special interest lobbying."
- U.S. Magistrate Judge James C. Francis IV (Ret.), S.D.N.Y.
“I will be curious to see if sanctions go up as we move from email to texts, instant messages, collaboration tools, etc. I feel we are at the stage with the newer communications methods that we were with email back in 2005 or so, where counsel winked and did not ask each other for it because they were uncomfortable with the technology. But the decrease in sanctions is good because it is important to allow corporations to feel comfortable with Information Governance efforts without fear of sanctions.”
- Andrew J. Peck, Sr. Counsel, DLA Piper, former U.S. Magistrate Judge, S.D.N.Y.