eDiscovery Daily Blog

You’re More Likely to Be Hit by Lightning Than to Be Sanctioned for Non-Preservation of ESI: eDiscovery Best Practices

When it comes to eDiscovery topics, eDiscovery expert (and frequent thought leader interviewee on this blog) Craig Ball doesn’t hesitate to speak his mind and confront the (oftentimes) brutal truth.  In Craig’s latest post in his excellent Ball in Your Court blog, he does so in spades.

In Preservation and Proportionality, Craig sets the stage with a graphic showing a Lady Justice statue with a thumb holding down one end of the scales (I like it!).  He introduces the topic by stating:

“Litigants have been ignoring e-discovery obligations with impunity for so long they’ve come to think of it as an entitlement.  Protected from predators, few have evolved.  But now that opponents and courts are waking to this failure, those who’ve failed to adapt are feeling exposed. They don’t like it, and they want protection.  They call it ‘proportionality.’

Proportionality sounds wholesome and virtuous, like ‘patriotism’ or ‘faith;’ but like those wholesome virtues, it’s sometimes the refuge of scoundrels.”

But, without proportionality, how will organizations protect themselves against the “increased” threat of sanctions for spoliation?  Craig addresses that by debunking the myth:

“The much-ballyhooed ‘rise in sanctions’ is designed to mislead.   The solid metrics we have on spoliation sanctions prove that the risk of being sanctioned for negligent non-preservation remains miniscule (.00675% per a report from the Federal Judicial Center).  Put simply: In the United States, you are more likely to be hit by lightning than to be sanctioned for non-preservation of ESI.

Noting that “the overwhelming majority of e-discovery sanctions decisions turn on venal acts like intentional destruction of evidence and contemptuous disregard of discovery obligations”, Craig decides to “tell it like it is: The claim that diligent, responsible litigants are being sanctioned for innocent e-discovery errors is hogwash.”

Craig then addresses how many organizations address their preservation obligations to avoid sanctions “by embracing monumental inefficiency in preservation instead of making sensible, defensible choices” and blaming the plaintiff for requesting the data (spoiler alert, it’s not the plaintiff’s fault).  “To the extent ‘proportionality’ is a byword for ‘let us err with impunity,’ it’s too soon in the evolution of e-discovery to be so resigned to incompetence.  If anything, we need more sanctions for incompetence, not more safe harbors”, Craig states.

Craig’s post continues to discuss the level of competence of lawyers preserving data, the efforts to use the proportionality argument and the court’s role in deciding (“proportionality shouldn’t be pressed into service as a “Get Out of Jail Free” card for botched preservation; but, it can prove instructive to courts weighing sanctions for failure to preserve relevant evidence”, he states).  In the end, it’s up to courts to “insist parties know how to use the scale and don’t put their thumbs on the pan” (of the scales of justice, that is).

By the way, this isn’t a recent sentiment of Craig’s spawned by the impending Federal rules changes this December, he notes that he wrote this post four years ago, but never posted it.  Interesting.

A link to his post is here.

So, what do you think?  Do you think we need more sanctions for incompetence and not just for willful destruction of ESI?   Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.