SANCTIONS FOR E-DISCOVERY VIOLATIONS: BY THE NUMBERS

796 DUKE LAW JOURNAL [Vol. 60:789
II. E-DISCOVERY SANCTION CASES ARE A DIVERSE DOCKET
Sanctions relating to e-discovery violations have reached courts
everywhere, have appeared in all types of cases, have been awarded
based on varying authority, and have been granted to defendants and
plaintiffs asymmetrically.
A. E-Discovery Sanction Motions Are Before All Courts
Our research indicates that 183 district court judges and 111
magistrate judges from seventy-five federal districts in forty-four
states, 26 as well as the Virgin Islands, 27 the District of Columbia, 28 and
Puerto Rico, 29
have issued written opinions regarding sanctions
involving e-discovery. All eleven of the federal appellate circuit
courts, 30 as well as the Federal 31 and D.C. Circuits, 32 have issued
26. District courts in six states, Alaska, New Mexico, North Dakota, Vermont, West
Virginia, and Wyoming, have not issued written opinions regarding sanctions for e-discovery
violations.
27. See Canton v. Kmart Corp., No. 1:05-cv-143, 2009 WL 2058908, at *1–3 (D.V.I. July 13,
2009) (granting the plaintiff’s motion for a spoliation-of-evidence jury instruction to sanction the
defendant for the failure to preserve videotape and other evidence); Nieves v. Kmart Corp., No.
2005-CV-0024, 2009 WL 1605623, at *1–2 (D.V.I. June 8, 2009) (denying the plaintiff’s motion
for a spoliation-of-video-evidence instruction); Dowling v. United States, No. 2000-CV-0049,
2008 WL 4534174, at *2 (D.V.I. Oct. 6, 2008) (denying the plaintiff’s motion for sanctions but
granting a spoliation-of-evidence instruction due to the defendant’s failure to preserve
audiotape evidence).
28. Covad Commc’ns Co. v. Revonet, Inc., 260 F.R.D. 5, 9 (D.D.C. 2009) (staying the
plaintiff’s motion for sanctions concerning the defendant’s failure to produce ESI documents in
the proper electronic format).
29. Century ML-Cable Corp. v. Carrillo, 43 F. Supp. 2d 176, 185 (D.P.R. 1998) (sanctioning
the defendant for destroying a laptop and awarding default judgment in favor of the plaintiffs).
30. O’Brien v. Ed Donnelly Enters., 575 F.3d 567, 587–88 (6th Cir. 2009) (reversing the
district court’s denial of an adverse-inference-instruction sanction for the spoliation of reports
stored on a computer hard drive and remanding for consideration of whether appellees knew, or
should have known, that the destroyed information may have been relevant to future litigation);
Ibarra v. Baker, 338 F. App’x 457, 470 (5th Cir. 2009) (reversing the district court’s sanctions
against the defendant’s attorney for the client’s deletion of emails because there was no finding
of bad faith evidenced by an intent to destroy adverse information); Brookhaven Typesetting
Servs., Inc. v. Adobe Sys., Inc., 332 F. App’x 387, 389 (9th Cir. 2009) (affirming the district
court’s refusal to grant terminating sanctions for the destruction of electronic source code);
Trask-Morton v. Motel 6 Operating L.P., 534 F.3d 672, 680 (7th Cir. 2008) (holding that a
showing of bad faith is a prerequisite to imposing sanctions for the destruction of evidence);
Buckley v. Mukasey, 538 F.3d 306, 323 (4th Cir. 2008) (instructing the district court that a
finding of “bad faith” is not essential for an adverse-inference instruction for prelitigation
spoliation and suggesting that “intentional,” “willful,” or “deliberate” conduct may be sufficient
(quoting Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir. 1995) (internal quotation
marks omitted))); Procter & Gamble Co. v. Haugen, 427 F.3d 727, 738–40 (10th Cir. 2005)
(reversing the district court’s order of dismissal for failure to preserve electronic data when the