While electronic evidence and e-discovery remain relatively new areas for litigation, sanctions for negligent handling of electronic evidence have reached an all-time high since data began being considered in court in the 1970s.
A study of federal decisions by the King & Spalding law firm revealed that 46 sanctions against attorneys were awarded in 2009, the most recent year noted in the study. Sanctions in five cases topped $5 million, and in four others sanctions of $1 million or more were awarded. Before 2009, the highest number of e-discovery sanctions in a single year was five.
Although attorneys are ultimately responsible for e-discovery, paralegals and other legal professionals play an essential role in its collection and management, according to Michelle Galloway, an attorney at Cooley Godward LLP and litigation lecturer at Stanford and Santa Clara law schools. Paralegals are involved in all aspects of the e-discovery process from managing client expectations to the actual collection, review and production of documents, making training essential.
The sanctions were awarded based on several factors. Some attorneys failed to turn over materials in a timely manner, some failed to advise clients to preserve evidence, some were negligent in supervising a client search for responsive information, and some couldn’t produce promised electronic evidence at all, according to the King & Spalding study, published in the Duke Law Journal.
In sanctions that were awarded due to “reckless disregard,” attorneys failed to comply with court discovery orders, or misrepresented the evidence. Sanctions for intentional or bad-faith conduct typically resulted from multiple failures to oversee their client’s preservation, search, and production efforts, followed by several misrepresentations to the court.
Key Points:
- Sanctions for negligent handling of electronic evidence have reached an all-time high
- Nearly 50 sanctions against attorneys were awarded in 2009
- Paralegals and other legal professionals play an essential role in e-discovery collection and management, making training essential
David Thun is an Associate Editor at the National Notary Association.