I had thought of entitling this post "Sanctions for Dummies" in the style of the popular and ever expanding "Dummies" series. (There is even "e-Discovery for Dummies" for those who are so inclined.) That title, however, would demean the scholarship in recent article by Douglas Pepe in the ABA Litigation Journal entitled "Persuading Courts to Impost Sanctions on Your Adversary." Pepe, a litigator with Gregory P. Joseph Law Offices in New York City, has written a thoughtful and easy to understand guide to the numerous avenues by which attorneys seek to sanction their opponents from Rule 11 to the Discovery Rules to the dreaded "inherent power" argument. Anyone considering seeking sanctions -- or defending against a sanctions motions -- should take a look.
What Pepe makes clear is the necessity of hanging your sanctions motion on the right peg. Too often sanctions motions are a murky blend of Rule 11 logic with the discovery sanction rules and frosted with the inherent power argument. When litigators fail to understand the key distinctions among the various sanction powers they may also fail to make the right arguments pro or con to ensure a just result. Particularly with e-discovery and spoliation issues at the forefront in today's litigation, there is a growing blurring of the lines between the various rules and powers.
Sadly, many courts have added to the confusion by something less than a clear analysis of the standards which they are applying in imposing discovery sanctions. Courts may rely on the inherent power argument but cite Rule 37 for the available sanctions. Occasionally they stray into Rule 1 or Rule 11 analyses.
The cause of justice would be well served if litigators adopt Mr. Pepe's advice (1) to chose the right rule for your sanctions motion and (2) seek only the appropriate sanctions designed to fit the wrong.
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