The sanctions handed down by US courts for ediscovery failures bewilder the rest of us somewhat. To my eye, if one wanted to design a system which was absolutely certain to encourage satellite litigation, tactical play and (as a defensive reaction) excessive discovery as a back-covering exercise, you would come up with something like the present sanctions regime. I wrote about this in my article International discovery, sanctions, ethics and US-UK comparisons at Georgetown in the context of Judge Shira Scheindlin’s Pension Committee Opinion, saying:
Providers of software and services use the threat of sanctions to encourage that pen across the bottom of the order form; if none of them has yet produced an advertising picture with an axe breaking through the door to the cry of “Here’s Shira”, it can only be a matter of time. The English just gape at them; you mean you get fined massive sums of money because you didn’t send everyone in the company a legal hold letter? Because you overlooked a box of old tapes?
Americans have rather more respect for senior office holders – judges, public servants and politicians — than we do, or respect at least for their offices, and it has been mildly amusing to an outsider to watch the legal establishment in its various forms implying, without actually saying so, that Judge Scheindlin might, you know, perhaps, have gone a little over the top in Pension Committee. An outsider can be less restrained and say that, whatever view you take of the decision, Pension Committee has elevated the fear of sanctions to the point where they have driven out proportionality.
They seem to like it. The problem which it gives us in the UK is that the inevitable obligations to disclose electronic documents become confused with the apparent message from the US that it is both dangerous and expensive to do so, which is why I spend a lot of my time drawing distinctions between the two systems. The UK is no more tolerant than the US of truly culpable omissions and failures but we have, so far at least, managed to avoid giving litigants the impression that every false move risks enormous financial penalties.
It is, to some extent, a matter of impression within the US itself – my Georgetown article reports Judge Scheindlin as reminding us that even she has given only two sanctions rulings; they just happen to be trend-setters, and not entirely in a good way. The same article emphasises that there are many who deserve all they get:
The argument is made more complex by the fact that many lawyers are simply incompetent and fail to meet the standards for that reason; others have motives for concealing documents which, again, need to be punished; yet others do very nicely, thank you, from the work apparently justified in the climate of fear; the plaintiff bar has every reason to exploit the nervousness for tactical reasons. How does one strike a balance between keeping such people under control without frightening the competent and conscientious into over-broad discovery? The question is all the more interesting when asked from the standpoint of a jurisdiction whose mantra is that you do not need to look under every stone?
There is some confusion, anyway, over the actual sanctions statistics, as illustrated by the title of an article on the Catalyst ediscovery blog headed Sanctions are up? Sanctions are down? Which is it? The article analyses various sources of statistics and concludes that the trend is upwards and will continue to increase. The sentence which chills those involved in UK e-disclosure is “Motions for sanctions have become a standard weapon in the litigation arsenal”. We have got to raise the standard without encouraging the use of disclosure applications as a tactical weapon.
It is timely, then, that we get a sober analysis of sanctions in a paper called Pension Committee Revisited on the Legal Hold Pro site. It is a useful summary for those who would understand the subject.