Recognizing the "collective anxiety" in the legal community about preservation and sanctions in e-discovery, Chief Magistrate Judge Paul W. Grimm of the U.S. District Court for the District of Maryland, a well-known author of opinions and articles in this area, recently issued a significant decision about preservation and sanctions that should be of particular interest to organizations facing complex issues regarding preservation of electronically stored information. Although the case involved jaw-dropping acts of intentional spoliation and up to two-years of jail time for the spoliator, the decision is most important for its in-depth examination of the law of preservation and sanctions.
Preservation--and the sanctions imposed when a party fails to preserve relevant documents--has been the subject of previous high profile opinions in 2010, notably the Pension Committee decision by Judge Shira Scheindlin of the Southern District of New York and the Rimkus decision by Judge Lee Rosenthal of the Southern District of Texas. Judge Grimm has joined the dialogue in Victor Stanley II with a thorough and scholarly survey of preservation and sanctions standards in the federal courts. Particularly helpful to those who must navigate the morass of opinions in the different circuits regarding the scope of the duty to preserve and the requirements for sanctions, Judge Grimm provided an appendix laying out by circuit the scope of the duty to preserve and the culpability and prejudice requirements for various sanctions.