Electronic discovery (also known as e-discovery), has long been hailed as a salvation over the time-consuming, traditional process of discovery. But it's not as promising as it once seemed to lawyers.
Lawyers are getting sanctioned for e-discovery sanctions at a higher rate than ever before, according to the Wall Street Journal. In fact, e-discovery sanctions have reached an all-time high, the ABA Journal reports.
What exactly are lawyers getting e-discovery sanctions for? The main e-discovery violations were: failure to preserve electronic evidence, failure to produce and delay in production. Defendant attorneys were nearly three times more likely to get e-discovery sanctions. Courts also did not sanction just attorneys; clients were often slapped with e-discovery sanctions as well.
So while lawyers are not stuck in conference rooms filled with boxes of documents that they need to pore over page-by-page, lawyers still need to be aware of the consequences that come with e-discovery's convenience.
Most lawyers can attest that e-discovery is not as easy as it seems. Indeed, make no mistake, e-discovery is downright hard. "Performing complicated tasks on a deadline creates the opportunity for incorrect or incomplete production, whether resulting from innocent inadvertence or intentional malfeasance," according to the King & Spalding study and reported in the Duke Law Journal.
While e-discovery may not be easy, the e-discovery sanctions against attorneys are not exactly cheap. Sanctions of more than $5 million were ordered in five cases, and sanctions of $1 million or more were awarded in four cases. A typical sanction requires lawyers to pay attorney fees and costs, which range from $500 to $500,000.
It is a lesson that can be hard to learn, but when it comes to e-discovery, be aware of deadlines and that you can open yourself and your client to e-discovery sanctions.
- Sanctions For E-Discovery Violations: By The Numbers (ABA Journal)
- E-Discovery Law Means Get It Right, Or Face Sanctions (FindLaw's Technologist Blog)
- States Embrace Electronic Discovery (FindLaw's Technologist Blog)