25 Percent of Reported E-Discovery Opinions in 2008 Involved Sanctions Issues

Sheri Qualters
The National Law Journal
December 17, 2008

One-quarter of the reported electronic discovery opinions issued in the first 10 months of the year involved sanctions issues, according to a new Kroll Ontrack Inc. study.

The Kroll Ontrack software division of risk consultant Kroll Inc. analyzed 138 reported cases from January through October 2008 for the study. Also, according to the analysis, 13 percent of cases addressed preservation and spoliation issues; 12 percent involved computer forensics protocols and experts; 11 percent addressed admissibility; and 7 percent of cases involved privilege considerations and waivers.

The cases illustrate that judges frequently issue sanctions for mishandling of electronic discovery and lack of document retention policies, said Michele Lange, Kroll Ontrack’s director of legal technologies, in a statement. “It is clear that courts are no longer allowing parties to plead ignorance when it comes to [electronic discovery] best practices.”

Kroll Ontrack’s study detailed several decisions, including a federal court decision in the Northern District of California that required defendants to pay more than $250,000 in fees and costs for discovery conduct “among the most egregious this court has seen,” according to an Aug. 12 opinion by U.S. Magistrate Judge Elizabeth D. Laporte. Keithley v. The Home Store.Com Inc., No. 3:03-cv-04447 (N.D. Calif.).

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