Do you think the risk of discovery sanctions is overblown?

For litigants who became “newsworthy” because they were sanctioned, the answer is no. 

But many organizations observe their discovery obligations as if sanctions were no threat at all.  They feel little incentive to implement a process that will have the company prepared for litigation.  http://bit.ly/jjWNR6  Worse, there are others who view discovery misconduct – e.g., refusals to produce documents in response to requests or orders – as “tactically advantageous.”  See Lee v. Max Intern., LLC, --- F.3d --- (10th Cir. 2011), http://bit.ly/kg4n6L.  Whether intentional or inadvertent, such conduct unreasonably lengthens the litigation process and increases the expense for all involved.  It also belies the mandate from Federal Rule 1 to discover efficiently...

The eDiscovery frenzy that has gripped the American legal system over the past decade has become increasingly expensive.  Particularly costly are inquiries into an organization’s data management practices and production efforts.  These investigations are lengthy and often disruptive to business operations.  Just as troubling, they increase the expense and duration of litigation.  Given these cost and delay issues, it is no wonder that jurists are looking for alternative methods to rein in “promiscuous discovery.”  The latest approach is found in Federal Rule of Civil Procedure 1.

Federal Rule 1 establishes a compelling directive that is tailor made for eDiscovery.  More than just a vestigial preamble to the Federal Rules, Rule 1 requires the “just, speedy, and inexpensive determination of every action and proceeding.”

To understand just how courts are recognizing the value of Rule 1’s decree to address...

Several recent court cases have imposed sanctions on companies that unwittingly turn over the duty to manage, archive and discard data to their rank and file employees.  One of the latest examples – Suntrust Mortgage, Inc. v. AIG United Guaranty Corp. (E.D. Va. Mar. 29, 2011) – demonstrates how expensive that approach to information governance can be.

In Suntrust Mortgage, a Virginia federal court issued sanctions against plaintiff Suntrust for falsifying evidence.  Several key emails between the parties that supported the defendant’s arguments were altered by a Suntrust employee to bolster the plaintiff’s claims.  When the truth eventually came out, Suntrust’s credibility – and pocketbook – took a hit.  Indeed, a motion for attorney fees is now pending to recoup the nearly $4 million the defendant incurred to address that malfeasance.

While evidence falsification is an uncommon occurrence...