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.
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