My pal Bob Ambrogi at Catalyst posted this excellent analysis showing the increase in sanctions. Of course, when I ran into him at LTNY, we both chuckled over the fact that the latest Gibson, Dunn report states the opposite. Bob followed-up on his own article with another excellent analysis on the discrepancy.
When it comes to this portion of the e-Discovery discipline, I prefer to look at it as simply “discovery”. I even have a nifty formula. The number of attorneys/clients engaging in discovery misconduct is directly proportional to those engaging in e-Discovery misconduct. The proportion then increases/decreases based upon the bad actors’ knowledge of electronic forensics. In other words, someone is more likely to engage in trickery if they think they won’t get caught – and when it comes to e-Forensics, in most cases, they don’t even know how we catch them.
Obviously, this doesn’t make me a genius. If anything, it’s common sense. But, betwixt and between all the debate about cooperation, I remain firmly in the “I’ll believe it when I see it” category.
This is all beside the point, anyway. As I’ve stated before, if you look at the total amount of sanctions, it’s still an infinitesimal number when applied to the amount of cases.
Continued education of all parties regarding the process involved still augurs well for the future by keeping honest parties honest – and making dishonest parties at least think twice before acting.