In this month’s column, I am not going to discuss this or that last esoteric digital search case. Rather, I am going to discuss something with which everyone reading this column should long be familiar: financial sanctions. In two recent e-discovery cases, courts have awarded such sanctions even where they have refrained from imposing substantive sanctions such as adverse inference instructions. As we look through these cases, we should consider how errors by counsel and the changes to F.R.C.P. 37(e), which make it harder for a party to obtain sanctions for the failure to preserve and produce electronically stored information in e-discovery, may have led to the results here and may lead to similar results in future matters.
Failure to Produce
In Michigan Millers Mutual Insurance v. Westport Insurance, Case No. 1:14-cv-00151-PLM (W.D.Mich. Nov. 7, 2014), the defendant was awarded $3,180 in attorney fees and expenses under Rule 37(a)(5)(A). The defendant sought the award because, while the parties had agreed to voluntary disclosures of ESI, the plaintiff obtained an extension of the disclosure deadlines, did not disclose, then produced discovery—a relatively small production of 66,000 pages in a standard, review platform format—more than four months after the extension deadline. During that period, the defendant made several unanswered inquiries as to when disclosure would be made and served a Rule 34 request for production; when it was not satisfied, the defendant filed a motion to compel production and briefed the matter. A hearing was avoided only because, the day before it was to be conducted, the plaintiff “stipulated to the entry of an order granting the discovery” the defendant sought. The plaintiff even missed the deadline in the stipulated order by three days.
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