While financial penalties could ameliorate overused eDiscovery sanctions motion practice, improved corporate information governance might be the more meaningful solution to ensure protection again sanctions in any circumstances – a step that is critically important given the increasingly complex information ecosystems in business.  In the Legaltech News article “Why an Amended Rule 37(e) Hasn’t Slowed 'Hail Mary' E-Discovery Sanction Motions,” Jonathan Redgrave provides insight on key issues powering sanctions requests.

Despite changes to the Federal Rules of Civil Procedure’s (FRCP) Rule 37(e) clarifying discovery sanction standards in 2015, many lawyers are still filing discovery sanction motions that have little chance of being granted. While some e-discovery lawyers say the reason behind these motions can be tied to lagging information governance practices, others note that busy dockets are keeping judges from sending a message against ‘Hail Mary’ sanction attempts.

In 2015, Rule 37(e) was updated with specificity regarding when parties can be penalized for the loss of requested electronically stored information (ESI). Under the new rule, if the court finds prejudice to another party stemming from the loss of information, it “may order measures no greater than necessary to cure the prejudice.” Or if the court finds that the party acted with the “intent to deprive another party of the information’s use in the litigation,” the judge can presume the lost information was unfavorable to the party; instruct the jury that they can presume the information was unfavorable to the party; or dismiss the action or enter a default judgment.

The amendment “absolutely” raised the bar for what parties have to show in order to obtain termination sanctions under Rule 37(e), said eDiscovery Assistant CEO Kelly Twigger, who recently released a report of 2020′s e-discovery case law. Still, while the amendment was useful, she said it also sparked a flurry of unsubstantiated sanction requests.

“It has highlighted that other sanctions are available to parties, and I do think the amendments brought [e-discovery] to the forefront. Lawyers have realized that all discovery is electronic discovery and they have to ask for data. And when data doesn’t exist, they ultimately think: sanctions,” she said.

Jonathan Redgrave, managing partner of e-discovery boutique Redgrave, agreed, adding that while some parties file discovery motions for varying circumstances, a loose grasp of corporate data is also fueling these sanction requests.

We still see some sanction motions that shouldn’t be there, but they hope it’s in a favorable jurisdiction or they get lucky and impact the settlement’s value,” he said. “But there’s other instances where people weren’t so attentive to changing technology or doing their homework and didn’t dig in” to their data.

Read the full Legaltech News article here