In “Can Court Remedies Police the Production of ESI?” I posed the question of whether Victor Stanley Inc. v. Creative Pipe Inc. in the U.S. District Court for the District of Maryland and Rockwood v. SKF USA in the U.S. District Court for the District of New Hampshire signaled a trend toward courts using sanctions for e-discovery violations as they do the exclusionary rule for Fourth Amendment violations, i.e., to “police” the practice of e-discovery generally by imposing sanctions not simply to punish the litigant, but to deter the future misconduct of others.
Two more recent cases, Lee v. Max International in the 10th U.S. Circuit Court of Appeals and DL v. District of Columbia in the U.S. District Court for the District of Columbia, both decided in May 2011, echo Victor Stanley and Rockwood in making clear that the sanctions they imposed or upheld were meant as much to deter the future misconduct of others as to punish the offenders before the bar, and so continue the trend. Discussion of these opinions will illuminate what courts consider when determining whether to impose sanctions for e-discovery violations and should help counsel advise their clients.
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