In civil litigation, discovery is the pre-trial phase during which parties exchange evidence through depositions, interrogatories, document requests, and admissions. When a party obstructs that process, courts can impose discovery sanctions to deter misconduct, compensate the opposing side, and preserve the integrity of fact-finding.
In U.S. federal practice, the governing authority is Rule 37 of the Federal Rules of Civil Procedure. Sanctions escalate with the severity of the violation and may include:
- Monetary sanctions — ordering the offending party to pay the opponent's attorney's fees and costs caused by the misconduct.
- Issue or evidence preclusion — barring the violator from supporting or opposing designated claims, or from introducing certain evidence.
- Adverse inference instructions — telling the jury it may presume the missing or destroyed evidence would have been unfavorable.
- Striking pleadings — removing claims or defenses from the case.
- Default judgment or dismissal — the "death penalty" sanction, entered against the offender on the merits.
- Contempt of court — including, in rare cases, incarceration.
Rule 37(e), amended in 2015, specifically addresses the loss of electronically stored information (ESI). Severe sanctions like adverse inferences or dismissal require a finding that the party acted with intent to deprive another of the information's use.
Most jurisdictions require the moving party to first attempt to meet and confer in good faith before filing a motion to compel or for sanctions. Courts generally favor proportional, lesser sanctions, reserving terminating sanctions for willful, repeated, or bad-faith conduct.
Comparable sanction regimes exist in state courts (e.g., California Code of Civil Procedure §§ 2023.010–2023.040) and in international arbitration, where tribunals may draw adverse inferences under instruments such as the IBA Rules on the Taking of Evidence. For policy researchers, sanctions practice is a useful lens on how legal systems enforce transparency norms between adversarial parties.
Example
In Zubulake v. UBS Warburg (2004), Judge Shira Scheindlin issued an adverse inference instruction against UBS after the bank failed to preserve relevant emails, a landmark ruling on e-discovery sanctions.
Frequently asked questions
Terminating sanctions — dismissal of the plaintiff's case or entry of default judgment against the defendant. Courts reserve these for willful, bad-faith, or repeated violations after lesser measures have failed.
Keep learning