SANCTIONS FOR E-DISCOVERY VIOLATIONS: BY THE NUMBERS

818 DUKE LAW JOURNAL [Vol. 60:789
Courts rarely sanction counsel for e-discovery violations without
also sanctioning the client. 126
In all three cases in which courts have
sanctioned in-house counsel for e-discovery violations, the client was
also sanctioned. 127 Additionally, counsel sanctions usually result from
a pattern of misconduct, not an isolated incident. In only four of the
thirty cases involving outside counsel sanctions were outside counsel
sanctioned as the result of a single instance of misconduct. 128
The cases identified various levels of misconduct as the basis for
counsel sanctions. Four cases involved negligence, seven cases
involved gross negligence, nine cases involved reckless disregard, and
ten cases involved intentional conduct or bad faith.
Negligence is a failure to conform to the standards of acceptable
conduct “to participate meaningfully and fairly in the discovery
phase.” 129 In all four cases in which the court sanctioned counsel for
negligent conduct, counsel was in possession of client materials but
failed to produce them in a timely fashion. 130
126. In only four of thirty cases were outside counsel sanctioned without the client also
being sanctioned. See Auto. Inspection Servs., 2007 WL 3333016, at *7 (“[T]he Court will not
attribute [counsel’s] conduct to his client and deprive it a chance to present its case on the
merits.”); Rousseau v. Echosphere Corp., No. Civ.A.03-1230, 2005 WL 2176839, at *1 (W.D. Pa.
Aug. 30, 2005) (sanctioning counsel alone because the client’s case had already been dismissed);
Brick, 2004 WL 1811430, at *3 n.29 (sanctioning counsel alone because his “disregard of
discovery obligations . . . could not have been performed on behalf of his client”); Fagnant, 2004
WL 2944126, at *2, *4 (sanctioning counsel alone for carelessly or negligently delaying
document delivery, despite the client’s good faith efforts).
127. Swofford, 671 F. Supp. 2d at 1288–89; Qualcomm, 2008 WL 66932, at *1; Nat’l Ass’n of
Radiation Survivors, 115 F.R.D. at 558; see also Bray & Gillespie II, 259 F.R.D. at 588, 590
(sanctioning the client and outside counsel, and reminding in-house counsel not to rely blindly
on outside counsel); Poole, 192 F.R.D. at 611 (directing sanctions at the client and outside
counsel, but also holding that sanctions are appropriate against in-house counsel).
128. See Edelen v. Campbell Soup Co., Civil Action No. 1:08-cv-00299-JOF-LTW, 2009 WL
4798117, at *2–3 (N.D. Ga. Dec. 8, 2009) (sanctioning counsel for the failure to comply with a
court order to narrow overly broad requests that sought the complete contents of employee
laptops); Ajaxo, 2008 WL 5101451, at *1–2 (sanctioning counsel for noncompliance with a court
order requiring production of documents in a searchable format); R & R Sails, 251 F.R.D. at 526
(sanctioning counsel for producing only eleven of the seventeen pages in its possession prior to
the relevant deposition); Fagnant, 2004 WL 2944126, at *1–2 (sanctioning counsel for not
producing computer database printouts in its possession until the eve of trial).
129. Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 685 F.
Supp. 2d 456, 464 (S.D.N.Y. 2010).
130. See R & R Sails, 251 F.R.D. at 526 (sanctioning counsel for not producing the entire
electronic claim log until the next month); Digene Corp. v. Third Wave Techs., Inc., No. 07-C-
22-C, 2007 WL 4939048, at *1–2 (W.D. Wis. Oct. 24, 2007) (sanctioning counsel for delaying
notebook production for months because counsel mistakenly believed the notebooks had
already been sent electronically); Sheppard v. River Valley Fitness One, L.P., 203 F.R.D. 56, 60
(D.N.H. 2001) (sanctioning counsel for the failure to timely comply with a discovery order),