There are currently various sources of authority that federal courts can invoke to sanction attorneys who bungle their e-discovery obligations, but each is insufficient. All fifty states have their own rules authorizing courts within the state to refer misbehaving attorneys to the local disciplinary body, but each state’s rule is different, leading to much inconsistency and lack of uniformity among the federal courts. The Federal Rules of Civil Procedure (“FRCP”) address e-discovery abuse but do not authorize courts to impose sanctions on attorneys for their role in e-discovery abuse. This is a problem because attorneys have ethical and professional obligations to preserve evidence and advise clients on what information needs to be preserved and how. Many failures to properly preserve ESI can be traced back to the lawyer. This obligation is especially important today, where much evidence and information is found through various electronic forms. Something must be done to provide predictability, uniformity, and efficiency for courts when imposing sanctions for e-discovery violations. Because ESI is so important to discovery, and because attorneys play such a major role in the discovery process, the FRCP should add a Rule giving courts authority to impose sanctions against attorneys who act improperly in e-discovery.
Part I of this Note will discuss the history of discovery and the rise of e-discovery as technology gathered steam. Part II will explain the benefits and costs of technology and e-discovery, and the various ethical obligations and common law expectations that attorneys currently have when it comes to e-discovery. Part III will review several sources of authority that federal courts have used in the past to impose sanctions on attorneys for their role in e-discovery abuse. Part IV will propose a new Rule to be added to the FRCP, which would give federal courts a uniform, reliable system of imposing e-discovery sanctions on attorneys. Part IV will continue with a discussion of the shortcomings of other suggested solutions and potential concerns with a new FRCP Rule.
Marilyn G. Mancusi,
Attorneys, E-Discovery, and the Case for 37(G),
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol97/iss5/15