SANCTIONS FOR E-DISCOVERY VIOLATIONS: BY THE NUMBERS

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820 DUKE LAW JOURNAL [Vol. 60:789 other three cases, courts found repeated counsel misrepresentations about the adequacy of the client’s search and production, in light of overwhelming evidence to the contrary, to constitute recklessness. 138 In the cases we analyzed, sanctions for intentional or bad faith conduct typically resulted from multiple egregious failures to oversee the client’s preservation, search, and production efforts, followed by misrepresentations to the court over an extended period of time. 139 4798117, at *3 (N.D. Ga. Dec. 8, 2009) (affirming sanctions against counsel for its failure to comply with a court order to limit discovery); Ajaxo Inc. v. Bank of Am. Tech. & Operations, Inc., No. CIV-S-07-0945 GEB GGH, 2008 WL 5101451, at *1–2 (E.D. Cal. Dec. 2, 2008) (sanctioning counsel for unjustified disregard of a court order in its failure to produce documents in the court-ordered searchable format); Sterle v. Elizabeth Arden, Inc., No. 3:06 CV 01584(DJS), 2008 WL 961216, at *13 (D. Conn. Apr. 9, 2008) (sanctioning counsel for improper obstruction during a court-ordered forensic inspection); Wachtel v. Health Net, 239 F.R.D. 81, 101 (D.N.J. 2006) (sanctioning counsel for improper conduct and flagrant disregard of court orders in its failure to comply with a court order to supplement production); NSB U.S. Sales, Inc. v. Brill, No. 04 Civ. 9240(RCC), 2007 WL 258181, at *3 (S.D.N.Y. Jan. 26, 2007) (sanctioning counsel for its disregard of and failure to comply with three court orders compelling discovery); Oscher v. Solomon Tropp Law Grp. (In re Atl. Int’l Mortg. Co.), 352 B.R. 503, 509 (Bankr. M.D. Fla. 2006) (sanctioning counsel for ignoring discovery requests and filing meritless appeals of nonappealable discovery orders). 138. See Tantivy Commc’ns, Inc. v. Lucent Techs. Inc., No. Civ.A.2:04CV79 (TJW), 2005 WL 2860976, at *2 (E.D. Tex. Nov. 1, 2005) (finding sanctionable conduct when counsel allowed relevant ESI to be destroyed through normal destruction practices and denied the existence of, and failed to produce until “the eleventh hour,” highly relevant documents despite specific references to such documents by opposing counsel); see also Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co. (Bray & Gillespie I), 259 F.R.D. 568, 587 (M.D. Fla.) (“Such deliberate or reckless disregard of the truth can never provide substantial justification under Rule 37.”), aff’d in part, No. 6:07-cv-0222, 2009 WL 5606058 (M.D. Fla. Nov. 16, 2009); Mancia v. Mayflower Textile Servs. Co., No. CCB-08-273, 2009 WL 2252151, at *4 (D. Md. July 28, 2009) (ordering a motion to compel, a sanctions consideration hearing, and an award of costs for apparent discovery violations and deficiencies). 139. See Swofford v. Eslinger, 671 F. Supp. 2d 1274, 1285 (M.D. Fla. 2009) (sanctioning counsel for failure to issue a litigation hold despite receiving two notices requesting preservation); 1100 W., LLC v. Red Spot Paint & Varnish Co., No. 1:05-cv-1670-LJM-JMS, 2009 WL 1605118, at *28–35 (S.D. Ind. June 5, 2009) (sanctioning counsel for the failure to supervise the client’s search, failure to produce responsive documents, and misrepresentations about client information); Fharmacy Records v. Nassar (Fharmacy Records II), 572 F. Supp. 2d 869, 873 (E.D. Mich. 2008) (“Although some of the events in this litigation might be excused as resulting from mere negligence when viewed in isolation, considering them in the aggregate invariably leads to the conclusion that the plaintiffs and their attorney have conducted a campaign of fraud.”); Qualcomm Inc. v. Broadcom Corp., No. 05cv1958-B (BLM), 2008 WL 66932, at *12–20 (S.D. Cal. Jan. 7) (sanctioning counsel for the failure to instruct the client on searches, failure to produce, and misrepresentations about the existence of 46,000 potentially responsive emails), vacated in part, 2008 WL 638108 (S.D. Cal. Mar. 5, 2008); Brick v. HSBC Bank USA, No. 04-CV-0129E(F), 2004 WL 1811430, at *1–4 (W.D.N.Y. Aug. 11, 2004) (sanctioning counsel for the failure to issue a litigation hold, failure to supervise the search by the client’s employee, misrepresentations as to production completion, failure to notify the court of document destruction, improperly withholding documents for privilege, and failure to
2010] SANCTIONS FOR E-DISCOVERY VIOLATIONS 821 Additionally, the discovery at issue was usually central to the litigation and, in many instances, the subject of specific court orders compelling production. 140 Sanctions for counsel can be based on the counsel’s personal execution of discovery tasks or on the counsel’s role in coordinating and overseeing the client’s discovery. 141 Rule 26(g) imposes on counsel an affirmative duty to engage in pretrial discovery responsibly. 142 As noted in Metropolitan Opera, although “counsel need not supervise every step of the document production process and may rely on their clients in some respects, the rule expressly requires counsel’s responses to be made upon reasonable inquiry.” 143 Counsel sanctions for failure to execute discovery obligations include situations in which the client has met its underlying discovery obligations to collect and provide requested discovery materials to counsel, but counsel has failed to produce the requested discovery or communicate accurate information to the court and opposing counsel in a timely manner. Counsel’s failure to competently execute produce client files in possession of counsel); Metro. Opera Ass’n, Inc. v. Local 100, Hotel Emps. & Rest. Emps. Int’l Union, 212 F.R.D. 178, 184–214 (S.D.N.Y. 2003) (sanctioning counsel for the failure to issue a litigation hold, failure to supervise a search for responsive documents, misrepresentations as to production completion, and unilateral failure to produce a category of responsive documents), adhered to on reconsideration by No. 00 Civ. 3613(LAP), 2004 WL 1943099 (S.D.N.Y. Aug. 27, 2004). 140. Auto. Inspection Servs., Inc. v. Flint Auto Auction, Inc., No. 06-15100, 2007 WL 3333016, at *6 (E.D. Mich. Nov. 9, 2007) (finding that counsel’s “secret access to these computers may have irrevocably tainted key pieces of evidence”); Exact Software N. Am., Inc., v. Infocon, Inc., 479 F. Supp. 2d 702, 719 (N.D. Ohio 2006) (“The information at issue is not ancillary to its case; most of it goes to the heart . . . .”); see also Travel Sentry, Inc. v. Tropp, 669 F. Supp. 2d 279, 285 (E.D.N.Y. 2009) (listing lower court orders that focus on discovery compliance); Rousseau v. Echosphere Corp., No. Civ.A. 03-1230, 2005 WL 2176839, at *8 (W.D. Pa. Aug. 30, 2005) (holding that the belated production of material evidence ultimately led to the dismissal of the case). 141. See Zubulake v. UBS Warburg LLC (Zubulake V), 229 F.R.D. 422, 435 (S.D.N.Y. 2004) (“[C]ounsel is responsible for coordinating her client’s discovery efforts . . . to properly oversee . . . its duty to locate relevant information and its duty to preserve and timely produce that information.”); see also id. at 432 (“A party’s discovery obligations do not end with the implementation of a ‘litigation hold’—to the contrary, that’s only the beginning. Counsel must oversee compliance with the litigation hold, monitoring the party’s efforts to retain and produce the relevant documents. Proper communication between a party and her lawyer will ensure (1) that all relevant information (or at least all sources of relevant information) is discovered, (2) that relevant information is retained on a continuing basis; and (3) that relevant non–privileged material is produced to the opposing party.”). 142. FED. R. CIV. P. 26(g). 143. Metro. Opera, 212 F.R.D. at 222.
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SANCTIONS FOR E-DISCOVERY VIOLATIONS: BY THE NUMBERS

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