Electronic Data Discovery Sanctions: The Unmapped, Unwinding, Meandering Road, and the Courts’ Role in Steadying the Playing Field

This Article highlights a growing problem for litigants who are involved in electronic data discovery (EDD). The world of litigation today encompasses massive amounts of electronically produced documents. It is estimated that ninety-nine percent of new information is created and stored electronically. The litigation practice generally, as it relates to electronic discovery (e-discovery) particularly, has mushroomed into a chaotic process. The technological age has radically impacted the federal discovery process. The purpose of the 2006 amendments to the Federal Rules of Civil Procedure (FRCP) was, among other things, to address problems associated with electronically stored information (ESI) that arise during the litigation process.... Part II analyzes courts’ approach to EDD violations and the different standards required for sanctionable conduct. Part III illustrates certain trends and methodologies involving sanctions that have arisen since the adoption of the 2006 FRCP. Part IV highlights the necessary corollary that indistinct sanctions have had on the litigation experience. Part V addresses the role of preservation in the sanctions process. Finally, Part VI concludes by examining possible solutions to ameliorate or redress the costly and often avoidable consequences of failure to comply with best practices regarding the preservation, production, and destruction of electronically generated documents that may be required during the litigation process