In discussing the evolving body of law about discovery of electronically stored information (ESI), we have often highlighted court decisions in which judges have ordered discovery-related sanctions under either Federal Rule of Civil Procedure 37(b) for the failure to comply with a court order or 37(e) for the failure to preserve ESI.

In a recent decision, however, a court took a novel direction when analyzing the rules that govern discovery sanctions. After repeated misrepresentations by a party and numerous motions to compel, a magistrate judge, in addition to Rule 37(b), relied on Federal Rule of Civil Procedure 37(a)(5), which authorizes monetary sanctions when a motion to compel is granted or when requested discovery is provided after a movant has filed.

‘Hedgeye Risk Mgmt. v. Dale’

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