When a sanctions motion is on the table
Courts expect the parties to handle most discovery disagreements themselves, and court rules generally require a good-faith attempt to resolve the dispute, sometimes followed by a conference with the court, before a discovery motion is filed. A motion for discovery sanctions usually follows something more serious than ordinary delay, such as ignoring an order compelling production or losing evidence after a duty to preserve it arose. Remedies range from an order to pay the other side's costs, through instructions that let a jury assume missing evidence was unfavorable, up to striking claims or defenses in the most serious cases. Judges have broad discretion and tend to match the response to the conduct and the harm it caused.
Lost electronic information
Disputes over emails, chat messages, and other electronic data now make up a large share of sanctions practice. In federal court, the harshest measures for lost electronic information generally require a finding that a party acted with intent to deprive the other side of it, while lesser measures can address prejudice. New York state courts apply their own standards, which differ in some respects. In both settings, the timing of the litigation hold, the systems it reached, and whether auto-delete settings were turned off are usually central questions. Records showing what preservation steps were taken, and when, are often the strongest response to an accusation.
Bringing or answering the motion
If you are considering such a motion, we look at whether the conduct is clearly documented, whether the required meet-and-confer steps were taken, and whether a narrower request such as a motion to compel would serve you better. If you are on the receiving end, we look at what actually happened, often with help from your IT staff or a forensic vendor, and whether the gap can be filled from other sources. Correcting a problem promptly and candidly tends to matter to judges. We also consider how the dispute affects the court's view of the case as a whole, since sanctions fights can overshadow the merits.
