Three lawyers from King & Spalding recently conducted an extensive study of federal court sanctions motions and sanctions awards for e-discovery violations. Their findings should not come as a surprise to practitioners experienced in e-discovery. The study analyzed 401 cases prior to 2010 in which sanctions were sought. Sanctions were awarded in 230 of the cases including dismissals of the action, adverse jury instructions and significant monetary penalties including nine awards of more than $5 million and awards of over $5 million in five cases. 2009 saw a dramatic increase in the amount of sanctions awards against counsel to thirty from a previous high of five in both 2007 and 2008. Counsel were sanctioned for failure to turn over materials timely, failure to inform clients of their preservation obligations, failure to oversee their client’s search for information responsive to e-discovery requests, failure to comply with Court Orders related to e-discovery, lawyer misrepresentations and the failure to produce documents.

The study illustrates the need for counsel to gain competence in the area of e-discovery and for companies to diligently prepare for handling e-discovery so that they have protocols in place that will avoid sanctions when litigation occurs. It also points out the need for wide adoption the Sedona Cooperation Proclamation to ensure that parties are getting the information they need, that cases do not become bogged down in endless disputes over e-discovery and that the valuable resources of the judicial system are not strained.