“This Article reviews our comprehensive survey of written opinions from cases in federal courts prior to January 1, 2010, involving motions for sanctions relating to the discovery of electronically stored information (ESI). We analyzed each case for various factors, including date, court, type of case, sanctioning authority, sanctioned party, sanctioned misconduct, sanction type, sanctions to counsel, if any, and the protections provided from sanctions by Federal Rule of Civil Procedure 37(e). The survey identified 401 sanction cases and 230 sanction awards and showed that sanction motions and awards have increased over time, particularly in the last five years. Sanctions against counsel are rare but are also increasing. Sanction motions have been filed in all types of cases and in courts across the country. Failure to produce ESI is the most common basis for sanctions. Courts have used a variety of different rules, statutes, and powers to sanction parties for e-discovery violations, including Rule 37 and the inherent power of the court, and courts impose many different sanction types on e-discovery violators, including the severe sanctions of dismissal, default judgment, adverse jury instructions, and sizeable monetary awards. Rule 37(e) has not provided broad protection from such sanctions.”
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