Recent years have shown an increase in discovery-related sanctions, but what form do they typically take? Some can be particularly severe, such as significant monetary awards, adverse jury instructions, default judgment, and even dismissal. Other sanctions include an order to pay reasonable expenses caused by the violation. No one wants to be sanctioned for any reason, so let’s take a look at some common discovery sanctions and how to avoid them.
Failure to Preserve or Produce ESI
This is the most common basis for sanctions, and penalties can be triggered by several types of misconduct. Failing to preserve electronically-stored information (ESI) might happen accidentally or intentionally, and both instances will come under heavy scrutiny from the courts. In instances where ESI has been unintentionally lost, courts can be more lenient but if the missing information is key evidence, they tend to impose stricter sanctions. Even when evidence has been preserved, if another party can show there was an intentional effort to destroy or modify it, sanctions will apply. Noncompliant collections can also result in the destruction of ESI; for example if a client is allowed to self-collect without supervision.
You can avoid this by prioritizing your collection efforts so that the most relevant ESI is preserved and produced. Consider working with an eDiscovery expert to ensure total compliance across collection. You can also aim to preserve important ESI by sending legal holds as quickly as possible.
Neglecting to do a Meet and Confer
Increasingly, courts are requiring counsel to take responsibility for their client’s pretrial discovery and imposing sanctions when attorneys do not engage with that duty. The Federal Rules of Civil Procedure (FRCP) Rule 26(f) requires parties to confer at the beginning of a matter in order to develop a discovery strategy. If one party does not participate in developing and submitting a discovery plan, the court may levy sanctions such as paying the other party’s reasonable expenses incurred from this lack of engagement.
It is critical to meet and confer with the opposing counsel and develop a discovery plan as early as possible. This is not a trivial task that can be ignored—rather, it is an important step in understanding your ESI and developing a stronger case.
Cooperating with Discovery Requests
Failure to make a disclosure or respond to oral or written questions as laid out in the FRCP allows the other party to move for appropriate sanctions in addition to compelling disclosure. For example, if one party requests ESI in line with the discovery agreement but it is not provided, they can motion to compel a response. In these instances, sanctions are common if the offending party offers an evasive answer or fails to respond entirely.
You can prevent these types of sanctions by demonstrating good faith cooperation with the other parties involved in your case. Avoid leaning on court action to handle simple discovery requests; you must show an attempt to confer with the other party before making a motion against them.
Discovery-related sanctions can seem daunting, but courts are typically understanding and try to obtain a clear picture about intent and context before imposing them. By taking your discovery responsibilities seriously and cooperating with other parties on your case, you can avoid being sanctioned and benefit from a more robust discovery effort.