Sanctions are perhaps the most devastating penalty a judge can impose on a party in civil litigation. In disputes over electronic evidence in litigation, sanctions have generated a lot of attention, though some judges say the impact is overstated. “I would like to straighten out the idea that judges issue a lot of sanctions,” says Shira Scheindlin, United States District Judge for the Southern District of New York, who recently issued her first e-discovery sanctions since 2004. “In six years I have issued no sanctions. Even if the number of sanctions is going up, in terms of raw numbers, it’s still very small.”

Lawyers are on notice from courts that sloppy document retention policies and mistakes can lead to sanctions and other penalties. But sanctions seem to have had little impact in pushing the legal community to take e-discovery more seriously. In fact, sanctions may actually be an ineffective tool for the bench to push attorneys to manage e-discovery more effectively.

In a recent ruling, The Pension Committee of Montreal v. Banc of America Securites, Judge Scheindlin issued sanctions because parties had neglected their duty to preserve evidence. She says she was frustrated to find that parties in that case seemed not to have learned to properly handle electronically stored information since she had last issued e-discovery sanctions in a widely noted decision six years ago. “I was surprised that so many years later not enough had changed,” says Scheindlin. “Lawyers should be on notice that their clients have a duty to preserve.”

According to law firm Gibson Dunn’s 2009 Mid-Year Update on E-Discovery Cases, the number of e-discovery sanctions have been trending upwards. Surveying sixty-one reported electronic discovery opinions, more than half involved the consideration of sanctions, and in twenty-two courts imposed some form of sanction. A similar 2008 survey conducted by e-discovery vendor Kroll Ontrack found half that number of sanctions.

But e-discovery analyst Barry Murphy of Murphy Insights notes that very few sanctions for e-discovery have had any real teeth, and the few that have involved large dollar mounts have been overturned. In some cases, e-discovery snafus have led to negative inferences that almost certainly impacted the outcome, but he says even those rulings seem to have had little impact. “The sanctions we’re seeing are too small to register with many people, and while negative inferences may lead to a bad outcome, the impact is not always obvious,” says Murphy. “Once we see a sanction for many millions of dollars because of a failure to preserve electronic evidence, the point will be clearer.”

Perhaps the largest penalty related to e-discovery failures was Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., No.CA03-5045 (15th Jud. Cir., Palm Beach Cty., Fla.), rev’d on other grounds, No. 4D05-2606 (Fla. Dist. Ct. App. Mar. 21, 2007), in which an award of $1.45 billion and a $15 million fine were issued after Morgan Stanley failed to produce electronic records. However, this potentially devastating outcome was reversed; blunting what would have otherwise been a wake-up call to the profession.

Murphy noted in his blog that most sanctions for e-discovery failures run from several thousand to hundreds of thousands of dollars. This may be a lot of money in some contexts, but he says is not enough to light a fire under most corporate legal departments. “These penalties are not enough to scare anyone into implementing new document retention policies that cost millions of dollars to put in place,” he says.

E-discovery vendors argue that the risk of sanctions and negative rulings warrants investment in new technology for proper collection, preservation, review, and production of ESI. But the profession seems to be resistant to the idea that the threat of sanctions is enough to force them to adopt new approaches to discovery. “There seems to be a lot of lawyers being willfully difficult when it comes to production,” says Christine Musil, director of marketing with e-discovery software vendor Informative Graphics. “It seems they aren’t too concerned about sanctions.”

via Law.com – Are E-Discovery Sanctions Tough Enough?.