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Duke Law Journal Survey of Sanctions in ESI Cases

See this excellent survey by the Duke Law Journal of cases decided before 2010 in which sanctions were awarded for issues related to ESI discovery.

Dan Willoughby, Rose Hunter Jones, and Gregory Antine reviewed 401 cases involving 230 sanction awards. The article includes charts listing the bases on which sanctions were awarded:

1. Failure to Preserve

2. Failure to Produce

3. Delay in Production

4. Failure to Perform Adequate Searches

5. Format of Production

6. Misrepresenting Completeness of Production

. . . and another chart listing the dollar amounts awarded in the cases for which there were monetary sanctions. The article concluded that sanctions against attorneys were on the rise, and the safe harbor provision of FRCP 37(e) provided little protection to parties. Sanctions were awarded not only on the basis of FRCP 26(g), FRCP 37(b), FRCP 37(c), and FRCP 37(d), but also under 28 U.S.C. 1927 for unreasonably and vexatiously 'multiplying the proceedings' or simply under the court's own inherent authority.

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