SANCTIONS FOR E-DISCOVERY VIOLATIONS: BY THE NUMBERS

826 DUKE LAW JOURNAL [Vol. 60:789
whether the court relied on the rule in making its decision. 159 The half
case is a decision in which the court held that Rule 37(e)’s safe harbor
would protect a party from potential sanctions for some conduct prior
to notice of litigation, but that it would not protect the party from
potential sanctions for other conduct after notice. 160
Courts have not shown a propensity to give the safe harbor
broad and ready application. One court cited the rule at the outset of
a case, warning the parties to be cautious in relying on its
protection. 161
In another case, the court cited the rule but deferred
consideration of sanctions. 162 In twelve decisions, the court denied the
safe harbor, with many courts finding that the post-notice destruction
of evidence was not within the protection of Rule 37(e). 163
Among
159. In re Kessler, No. 05 CV 6056(SJF)(AKT), 2009 WL 2603104, at *3 (E.D.N.Y. Mar. 27,
2009) (appearing to apply Rule 37(e) sub silentio to reject an award of attorneys’ fees based on
the party’s failure to preserve video footage which “self-destructed” approximately twentyseven
hours after it was recorded “in accordance with the routine operation of
the . . . surveillance system”); Riverside Heathcare, Inc. v. Sysco Food Servs. of San Antonio,
LP (In re Riverside Healthcare, Inc.), 393 B.R. 422, 429 (Bankr. M.D. La. 2008) (refusing to
award sanctions when the absence of the requested email did not unfairly prejudice the
opposing party and when the email was deleted routinely before the suit).
160. Peskoff v. Faber, 244 F.R.D. 54, 60–61 (D.D.C. 2007) (noting that sanctions are
possible for the failure to disable an email auto-deletion function during the period following
notice of pending litigation, but are not appropriate for failure to do so prior to notice of
pending litigation).
161. Oklahoma ex rel. Edmondson v. Tyson Foods, Inc., No. 05-CV-329, 2007 WL 1498973,
at *6 (N.D. Okla. May 17, 2007) (admonishing the parties, in a case with voluminous ESI, to “be
very cautious in relying upon any ‘safe harbor’ doctrine as described in new Rule 37(f)”).
162. U & I Corp. v. Advanced Med. Design, Inc., No. 8:06-CV-2041-T-17EAJ, 2007 WL
4181900, at *6 (M.D. Fla. Nov. 26, 2007) (construing Rule 37(f) as “govern[ing] a parties’ [sic]
failure to cooperate during discovery” and deferring consideration of sanctions pending the
responding party’s submission of an affidavit of a corporate representative explaining why
certain emails were not available and detailing the efforts it made to obtain them).
163. KCH Servs. Inc. v. Vanaire, No. 05-777-C, 2009 WL 2216601, at *1 (W.D. Ky. July 22,
2009) (granting an adverse-inference jury instruction when the defendant ordered employees to
delete certain software and evinced an “unwillingness to place a meaningful litigation hold on
relevant electronic information after being placed on notice”); Stratienko v. Chattanooga-
Hamilton Cnty. Hosp. Auth., No. 1:07CV258, 2009 WL 2168717, at *4, *7 (E.D. Tenn. July 16,
2009) (awarding attorneys’ fees to the plaintiff as a sanction after the defendant hospital
reimaged the chief of medical staff’s hard drive immediately after the chief’s retirement and
long after the hospital was on notice that electronic information on the hard drive could be
relevant to the lawsuit); Ripley v. District of Columbia, No. 06-1705, slip op. at 9 (D.D.C. July 2,
2009) (holding that Rule 37(e) afforded no protection to a defendant that destroyed emails and
denied the existence of a back-up tape after the plaintiff requested the emails and awarding
attorneys’ fees as a sanction because “[d]efendants . . . did not operate their e-mail system in a
routine, good-faith manner”); Phillip M. Adams & Assocs. v. Dell, Inc., 621 F. Supp. 2d 1173,
1191–92 (D. Utah 2009) (holding that the safe harbor was not available because the defendant
discarded computer source code and failed to show reasonableness or good faith); Technical