After peaking in 2014, the rate of spoliation sanctions in federal courts entered a rapid decline. Today, there is no question that such sanctions are hard to come by—and getting harder.
The 2015 amendments to Federal Rule of Civil Procedure 37(e)6 have brought significant change to how courts are treating spoliation sanctions and a significant reduction in such sanctions’ availability. A survey of recent spoliation case law issued between 2016 and 2018 leaves no question that such sanctions are hard to come by—and getting harder.
Since January 1, 2016, federal courts have considered sanctions motions under Rule 37(e) on 237 occasions. Rule 37(e) spoliation sanctions, including both (e)(2) and (e)(1) sanctions, were granted in full or in part in fewer than 40 percent of cases—and when movants seek the strictest sanctions, courts are even more disinclined to grant them.
When compared to historical trends, the numbers point to an unmistakable decline in spoliation sanctions and a significant barrier to receiving the most severe sanctions. From 2010 to their peak in 2014, the rate of spoliation sanctions granted remained relatively stable, ranging from 60 percent to 63 percent. But this trend starts to reverse around 2015. That year saw a decrease in spoliation sanctions, with just 45 percent of motions granted, and that number has continued to drop steadily in the past three years. In 2018, only 36 percent of sanctions were granted in whole or in part, meaning litigants are now more than one third less likely to be sanctioned for spoliation than they were in 2014.
“When compared to historical trends, the numbers point to an unmistakable decline in spoliation sanctions and a significant barrier to receiving the most severe sanctions.”
Sanctions outcomes, 2010-2018
Sanctions outcomes, 2010-2018
See how leading federal judges think about eDiscovery, technology, sanctions and more in this oral history combining years of interviews with the judiciary.
Sanctions are not just more difficult to obtain when compared to pre-amendment years, however. Rule 37(e) sanctions have become increasingly difficult to obtain over the three years themselves as well. In 2016, as courts began wrestling with the new rules, they denied motions for Rule 37(e) sanctions in three out of four cases. Across 73 decisions, 56 percent issued outright denials, while 21 percent were denied in part and 23 percent granted. By 2018, Rule 37(e) sanctions were denied outright in 64 percent of the 86 decisions issued, denied in part in 11 percent, and granted in 26 percent.
“When it comes to Rule 37(e) remedies, the harshest sanctions are the most elusive.”
Rule 37(e) Motion Outcomes, 2016-2018
When it comes to Rule 37(e) remedies, the harshest sanctions are the most elusive. For the three-year period following the amendments, when seeking adverse inferences, adverse jury instructions, dismissal or default judgement, the remedies reserved by the Federal Rules of Civil Procedure to Rule 37(e)(2), such motions were denied in more than 80 percent of cases, with 68 percent being denied in full and 12 percent denied in part. When lesser sanctions were sought, such as additional discovery, the exclusion of evidence, or other ameliorative measures allowed by Rule 37(e)(1), courts were slightly more permissive, denying such motions outright in 65 percent of cases and denying them in part in 16 percent.
These trends, too, have become more distinct over the years. While the number of Rule 37(e) sanctions motions granted outright remains consistent, at 23 percent in 2016 and 26 in 2018, mixed rulings in which sanctions are granted in part and denied in part dropped 10 percentage points, from 21 percent in 2016 to just 10 percent in 2018—demonstrating an increasing polarization of outcomes and the increased likelihood that spoliation sanctions will be denied outright.
As a result, 2018 saw the greatest rate of denial of spoliation sanctions across the board, with the most severe sanctions granted fully in less than one out of every five cases. While 37(e)(1) sanctions were denied fully in 64 percent of cases, and in part in 10 percent, leaving 25 percent granted in full, 37(e)(2) cases were denied fully in 73 percent of cases, denied in part in 10 percent, and granted in full in only 18 percent.
To phrase it differently, in 2018, Rule 37(e)(1) sanctions were 43 percent more likely to be granted in full than those measures reserved to subsection (e)(2).
"In 2018, Rule 37(e)(1) sanctions were 43 percent more likely to be granted in full than those measures reserved to subsection (e)(2)."
6. For the full text of Rule 37, see https://www.law.cornell.edu/rules/frcp/rule_3. For the full amendment, see the Report of the Judicial Conference Committee on Rules of Practice and Procedure (2014).
2018 Sanctions Outcomes, 37(e)(1)
2018 Sanctions Outcomes, 37(e)(2)
“In 2018, Rule 37(e)(1) sanctions were 43 percent more likely to be granted in full than those measures reserved to subsection (e)(2).”
sanction granted for eDiscovery misconduct in Qualcomm v. Broadcom7
citations to Zubulake, 2004-20158
ESI spoliation sanctions granted in 20079
approximate odds of getting sanctioned for ESI spoliation in 200710
7. Qualcomm, Inc v. Broadcom Corp., No. 05-cv-1958-B (S.D. Cal. 2008)
8. Based on a review of cases in Bloomberg Law citing to Zubulake v. UBS Warburg, No. 02 Civ. 1243, (S.D.N.Y. May 13, 2003), Zubulake v. UBS Warburg, 216 F.R.D. 280 (S.D.N.Y. 2003), Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003), and Zubulake v. UBS Warburg, 2004 WL 1620866 (S.D.N.Y. July 20, 2004).
9. See CFJ study, supra.
10. Based on a search of the Federal Judicial Center's Integrated Database, identifying 236,762 federal civil cases terminated between January 1 and December 31, 2007.
Download a copy of the entire report, including an appendix of all federal spoliation cases and outcomes from 2016-2018.