SANCTIONS FOR E-DISCOVERY VIOLATIONS: BY THE NUMBERS

828 DUKE LAW JOURNAL [Vol. 60:789
In summary, the safe harbor was intended to provide limited
protection, and it has. Parties or counsel seeking refuge from the
increasing sanction-motion practice will be able to reach Rule 37(e)’s
refuge only in very limited situations. Since the rule’s adoption,
approximately two cases per year have met its requirements.
CONCLUSION
Sanction motions and sanction awards for e-discovery violations
have been trending ever-upward for the last ten years and have now
reached historic highs. At the same time, the frequency of sanctions
against counsel for e-discovery violations, though small in number, is
also increasing. Although serious e-discovery misconduct by parties
and counsel should continue to be the subject of sanctions,
appropriate consideration should be given to the complexity of e-
discovery in ruling upon the increasingly frequent e-discovery
sanction motion.
were requested by the defendant and holding that the Rule 37(e) safe harbor was “inapplicable
under these facts because the conduct giving rise to this action was not in violation of any
discovery order governed by Rule 37”).
169. In re Intel Corp. Microprocessor Antitrust Litig., 258 F.R.D. 280, 282 n.5 (D. Del. 2008)
(refusing to apply the Rule 37(f) safe harbor even though it was cited by the defendants in a
letter to the court describing its email system’s auto-delete function ); Orrell v. Motorcarparts of
Am., Inc., No. 3:06CV418-R, 2007 WL 4287750, at *7 (W.D.N.C. Dec. 5, 2007) (ordering, in an
employment case, that the plaintiff, who had “wiped” her laptop and was found to have served
deficient discovery responses, serve complete responses and provide her home computer to
defendants for forensic examination, and citing Rule 37(e), even though sanctions were neither
sought nor awarded); Disability Rights Council v. Wash. Metro. Transit Auth., 242 F.R.D. 139,
146 (D.D.C. 2007) (holding that Rule 37(e) was inapplicable because no sanctions were sought
and because of the “indefensible” failure to disable “auto-delete” during the course of
litigation).