Level of Culpability and Prejudice Are Still Key Factors Driving Sanctions Awards.
Just as we are giving you our top 20 attorney’s fees decisional redux for 2010, Williams Mullen, a 300-attorney firm with offices in Virginia, North Carolina, D.C. and London, has posted a December 17, 2010 Alert that provides a nice summary of trends for 2010 in the area of e-discovery law and practice. We cherry pick some interesting trends that were traced by this firm in the Alert with respect to sanctions, which typically include reimbursement of attorney’s fees relating to e-discovery battles.
E-discovery sanctions were sought and awarded in slightly fewer cases in 2010, the first dip since the 2006 e-discovery amendments to the Federal Rules of Civil Procedure. Of the 209 e-discovery opinions issued in 2010, sanctions were sought in 79 (35%) and awarded in 49 (62% of the cases in which sanctions were requested, or 23% of all e-discovery cases). This represents a decrease from 2009, where sanctions were sought in 42% of all e-discovery cases and were awarded in 70% of the cases in which they were requested (30% of all e-discovery cases). Fees and costs were the most common sanction, awarded in 60% of the cases involving sanctions. Terminating sanctions, adverse inferences, and counsel sanctioning decreased significantly in 2010, according to a chart presented by Williams Mullen in its Alert.
The spoliator’s level of culpability resulting in a loss is an important factor in the sanctions area, although this is where sharp conflicts arise among different jurisdictions. (See discussions in Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of America Securities, 2010 U.S. Dist. LEXIS 4546 (S.D.N.Y. Jan. 15, 2010) [District Judge Schiendlin]; Rimkus Consulting Grp. v. Cammarata, 2010 U.S. Dist. LEXIS 14573 (S.D. Tex. Feb. 19, 2010) [District Judge Rosenthal]; Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 2010 WL 3703696 (D. Md. Sept. 9, 2010) (Victor Stanley II) [District Judge Grimm].) However, the factor driving the outcome in most of the 2010 failure-to-preserve cases was the prejudice or harm to the aggrieved party.
The Alert also has some other interesting discussions on e-discovery topics. We thank Williams Mullen for such a nice year end survey in this important area.
"Silent E" by Tom Lehrer
“Silent E” by Tom Lehrer