Counsel's poor supervision of ESI preservation and production brings sanctions.

• Position: E-DISCOVERY

A U.S. federal magistrate judge has issued what some legal experts are calling a "stunning sanctions order" in HM Electronics v. R.F. Technologies against multiple defendants and their counsel for widespread discovery misconduct.

The order, which included monetary sanctions as well as a recommendation that sanctions and an adverse inference instruction be imposed on the defendants, is being described as a "wake-up call" to attorneys to become competent in e-discovery.

It was alleged that the defendants "intentionally withheld and destroyed highly relevant electronically stored documents," according to a 78-page order from U.S. Magistrate Judge Mitchell Dembin. The order said the defendants "threatened to interfere with the rightful decision of the case."

In the order, the magistrate noted that the lawyers did not issue a litigation hold, did not do proper follow-up, and overlooked certain issues, concluding that, "this type of lawyering falls below the standard ... for discovery."

According to Philip Favro, senior discovery counsel at Recommind, the court identified several breakdowns in the discovery process--some inadvertent and others intentional--that resulted in the sanctions. Key issues were that counsel:

* Certified that clients' discovery responses were true without conducting "a reasonable inquiry" into their truthfulness...