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February 22, 2011 Practice Points

E-Discovery Boosts Sanctions

By Cynthia Cohen and Virginia Sierra

E-discovery sanctions reached an all-time high in 2009. A study of federal decisions demonstrates that there were 46 e-discovery sanctions in 2009, although in 2010, discovery reform grew and sanctions were slightly lower. Prior to 2009, the highest number of sanctions granted in one year was five.

In 2009, attorneys were rarely sanctioned without also sanctioning clients. The most common misconduct warranting sanctions was the failure to preserve electronic evidence. Defendants were three times more likely than plaintiffs to be sanctioned. Sanctions of more than $5 million were ordered in five cases, and sanctions of $1 million or more were awarded in four others. The most typical sanction was an order to pay the opposing party's fees and costs, ranging from $500 to $500,000.

This article serves as another reminder that lawyers must be careful with e-discovery. Clients must be advised to preserve evidence and must be supervised in their search for responsive information. Critical documents must be timely produced or attorneys and their clients may be sanctioned for gross negligence, reckless disregard, intentional conduct, or bad faith.

Cynthia Cohen and Virginia Sierra are with Cohen Kennedy Dowd & Quigley, PC in Phoenix, Arizona.

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