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Electronic Data Discovery can be byzantine in its complexity, as evidenced by the rising number of sanctions imposed on clients and their attorneys by the courts. According to a survey of eDiscovery sanctions published in the December 2010 issue of the Duke Law Journal, the severity of sanctions are also increasing. Analyzing these findings, Debra Casens Weiss of the American Bar Association wrote:

E-discovery sanctions have reached an all-time high after three decades of litigation over alleged discovery wrongdoing, and lawyers are increasingly being targeted.

Defendants were sanctioned for e-discovery violations nearly three times more often than plaintiffs. When sanctions were awarded, the most common misconduct was failure to preserve electronic evidence, followed by failure to produce and delay in production.

Courts rarely sanctioned lawyers for e-discovery violations without also sanctioning their clients. Usually the counsel sanctions were for a pattern of misconduct. Typically the sanction required the lawyers to pay attorney fees and costs, and the amount ranged from $500 to $500,000.

Courts imposed sanctions most frequently for failure to preserve ESI. The next most common sanction was for failure to produce computer evidence.

Click here to read Weiss' full analysis of the study and here for the study itself.

Case Number 332 of the Duke survey, Smith v. Slifer Smith & Frampton/Vail Assocs. No. 06-CV-02206-JLK, 2009 WL482603 (D. Colo. Feb. 25, 2009), was a civil case in which David Penrod of PenrodEllis FDD served as a consulting and testifying expert on behalf of the plaintiff. Mr. Penrod's forensic investigation of defendant's computers revealed that the defendant had deliberately destroyed potentially relevant ESI on his work and home computers. Mr. Penrod's digital investigation also revealed that the defendant's Electronic Discovery vendor had attempted to conceal the defendant's actions. Even after Mr. Penrod uncovered the destruction, the defendant's vendor claimed that no such destruction had occured and brought in additional vendors with whom he was associated to challenge Mr. Penrod's conclusions.

The United States District Court in Denver, Colorado ruled otherwise. After reviewing Mr. Penrod's forensic report, the court imposed sanctions against the defendant, ruling that a negative inference instruction would be given to the jury for violations of electronic discovery rules. The defendant subsequently negotiated a favorable settlement with the plaintiff.

Click here for analysis and here for the full court decision.

PenrodEllis FDD is dedicated to assisting attorneys in meeting their ever increasing burden in electronic document production. We serve as objective vendors in Electronic Discovery cases and will seek to identify all custodians and sources of ESI. With over 24 years investigative experience, we know where to look - for both purposely and inadvertantly concealed (or destroyed) ESI. We will create a detailed audit trail fully describing our search process and findings. That audit trail is the cornerstone of an initial discovery report.