Sanctions – Putting Teeth into Your Litigation Response Effort

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Do you think the risk of discovery sanctions is overblown?

For litigants who became “newsworthy” because they were sanctioned, the answer is no. 

But many organizations observe their discovery obligations as if sanctions were no threat at all.  They feel little incentive to implement a process that will have the company prepared for litigation.  http://bit.ly/jjWNR6  Worse, there are others who view discovery misconduct – e.g., refusals to produce documents in response to requests or orders – as “tactically advantageous.”  See Lee v. Max Intern., LLC, --- F.3d --- (10th Cir. 2011), http://bit.ly/kg4n6L.  Whether intentional or inadvertent, such conduct unreasonably lengthens the litigation process and increases the expense for all involved.  It also belies the mandate from Federal Rule 1 to discover efficiently and cost effectively.  See http://bit.ly/ml1nsy.

The Pension Committee decision from last year surely reminded organizations that they must have a thoughtful, proactive approach to addressing document preservation and production.  Such admonitions did not end with Pension Committee, though.

Just last week, a Philadelphia federal court issued a spoliation inference sanction that essentially decided a premises liability case in plaintiff’s favor.  In Baynes v. The Home Depot U.S.A., Inc. (E.D. Pa. June 9, 2011), the defendant moved for a directed verdict since plaintiff did not present evidence that defendant had notice of the condition which caused her injuries.  The court denied the motion and instead supplied that evidence with an adverse inference against defendant.  Such a drastic sanction was issued because defendant failed to take reasonable steps to preserve relevant video footage of plaintiff’s “slip and fall” in advance of the litigation.

As the Baynes decision makes clear yet again, sanctions are a real threat to organizations.  This is particularly the case when companies fail to prepare for litigation.  To address this risk and avoid the cost issues associated with it, organizations should invest resources into preparing an effective litigation response effort.  As I mentioned earlier this week (http://bit.ly/jjWNR6), such an effort will typically include the designation of company officials who are responsible for

• Issuing a written hold instruction;
• Identifying and meeting with key players likely to have relevant documents;
• Suspending certain aspects of data retention policies to preserve relevant evidence; and
• Supervising document preservation and collection efforts.

By implementing and then observing these simple practices, your organization can be prepared for litigation when it hits.  And being prepared will help reduce the threat of sanctions and potential exposure to liability.