eDiscovery Sanctions on the Way Down: Report

As reported by MessagingArchitects.com, it seems as though the message behind the hefty fines, horror stories, and angry judges with their really angry judgements is getting through to corporate decision-makers, because eDiscovery sanctions dipped in 2010.

At least that’s the news according to the Lexology report, which noted that:

  • In 2010, sanctions were sought in 79 of 209 cases (38%), and awarded in 49 of those cases (62%), or 23% of all eDiscovery cases

  • In 2009, sanctions were sought in 88 of 208 cases (42%), and awarded in 49 of those cases (70%), or 30% of all eDiscovery cases

  • In 2010, terminating sanctions, adverse inferences and the sanctioning of counsel decreased

Does this really mean that companies are starting to see that eDiscovery compliance is not optional?

Does it mean that companies are finally grasping that putting systems in place to respond effectively and appropriately to eDiscovery requests is an investment – and not an expense?

Does it mean that companies that lack the in-house resources to deal with eDiscovery — which is most of them — are seeing the wisdom of choosing a Litigation Support Partner who will give them the competence, systems, resources and strategies they need?

It’s too early to tell. (Sorry, but it is.)

Indeed, as much as we’d like to celebrate this good news and kick off the year on a festive note, we still need to see whether this is a trend or just a blip on the radar screen. And not to be pessimists, but the dip in sanctions from 42% of cases to 38% is hardly parade-worthy; though, of course, it’s nothing to sneeze at.

Let’s simply say that it’s a start. Now let’s see if more companies get the message and figure out that, in 2011 and every year after this one, having an eDiscovery solution in place before a problem arises is not merely good policy.

It’s mandatory for survival. Just ask those angry judges…

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