Philip Favro: New Sanctions Case Offers Lessons on ESI Protocols and Information Governance Policies

Extract from Philip Favro’s article “New Sanctions Case Offers Lessons on ESI Protocols and Information Governance Policies”

ESI protocols have become an increasingly contentious issue in e-discovery. While ideally setting the framework for basic issues such as form of production, metadata fields, and load file specifications, ESI protocols have become bogged down in negotiations over search procedures and family productions of hyperlinked documents. Worse, some parties memorialize preservation procedures in ESI protocols.

As reflected in the recent In re Keurig Green Mountain Single-Serve Coffee Antitrust Litigation case, noncompliance with preservation provisions in an ESI protocol can expose parties to severe sanctions under Federal Rule of Civil Procedure 37(b)(2)(A). Keurig also offers other lessons on key ESI issues including that courts may defer to an organization’s reasonable information-related policies in connection with discovery-based decisions.

Rule 37(b)(2)(A) Sanctions vs. Rule 37(e) Sanctions

Courts may impose sanctions under Rule 37(b)(2)(A) when a party or witness fails to obey a discovery order. To determine whether sanctions are appropriate, courts look to the express language of a discovery order to ascertain whether a party has or has not complied with its provisions. If noncompliance is established, the court may issue a further order that remedies the harm in a “just” manner, including severe measures such as an adverse inference, evidence preclusion, or default judgment.

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