According to a report by e-discovery software provider Logikcull, e-discovery sanctions have dropped after the 2015 amendment to Federal Rules of Civil Procedure (FRCP) Rule 37(e). But some lawyers note they are still under pressure to collect and preserve data from rapidly advancing technology. 

“The End of Sanctions?: Rules, revisions and growing expertise are 'De-Risking' E-Discovery,” which reviewed nearly 700 federal and civil district court published opinions from 2012 to 2018, found that Rule 37(e) revisions and legal's growing expertise are “de-risking e-discovery.”

Still, some lawyers said the rule, while offering a uniform approach to e-discovery sanctions, doesn't offset the rapidly escalating challenges of e-discovery.

Littler e-discovery counsel and shareholder Denise Backhouse noted that while Rule 37(e) provides a uniform sanctions standard, the risks in e-discovery have only increased with the challenge of appropriately preserving data. “You have to exercise great care because the tools and devices are evolving constantly.”

Jonathan Redgrave, managing partner of D.C.-based law firm Redgrave, agreed. “I don't think it necessarily de-risks the environment, [but] it gave a better framework for parties and counsel to understand what is expected of them in court,” and a guide for preservation and discovery.

Redgrave noted that when added to published opinions, spoliation motions that are sometimes raised in letters or unpublished opinions could provide a more accurate portrait of sanction denial and approval rates.

Based on its own research, the Logikcull report found that since 2016, 36 percent of Rule 37(e) sanction motions were granted in full or part. That's a drop from 2014's peak of 63 percent and 2015's 45 percent of sanction motions being granted.

Although the amount of sanctions issued declined, parties were requesting sanctions—and harsh ones at that. The severest sanctions were sought in 77 percent of all spoliation cases, according to the report. But those motions were denied in whole or in part in 82 percent of cases in 2018.

The report noted that litigants face various hurdles in seeking sanctions, including proving ESI is lost and “cannot be restored or replaced through additional discovery.” Yet it added that as more data moves to the cloud where it can be shared and duplicated, “we may be reaching a point where the true loss of ESI is incredibly rare.”

To obtain a sanction, parties must also show they experienced a disadvantage from lost ESI, a requirement that can be a significant barrier. What's more, litigants repeatedly face challenges when attempting to prove intent to deprive, given that the 2015 revision doesn't clearly define “intent,” it said. 

The report noted that “some of the courts that have had to answer the question of what is sufficient to show intent have instead turned to rather circumstantial forms of proof—sometimes admittedly so.”

While the updates to Rule 37(e) have been in place for nearly four years, a debate still remains over a judge's inherent authority to issue sanctions against discovery misconduct.

The “all-purpose catch-all” of the court's inherent authority has led some to question if the standards established in the amended Rule 37(e) could be undermined. What's more, some also question if the Federal Rules Committee and the congressional rulemaking process can modify a judicial power presumed inherent without violating the separation of powers doctrine, the report said.