Legal Discovery Sanctions

DISCOVERY SANCTIONS AGREEMENT AND ORDER

This Discovery Sanctions Agreement and Order is made and entered into by and between Plaintiff: with counsel: and Defendant: with counsel: in the matter captioned Case No.: and entered into on this date:

RECITALS

WHEREAS, the Parties are engaged in civil litigation identified above and have engaged in discovery pursuant to the applicable rules and orders of the Court; and

WHEREAS, the Parties stipulate and agree that certain discovery obligations were not satisfied on a timely basis, including failures to produce, preserve, or identify relevant documents and electronically stored information, as detailed in the recitation of violations below; and

WHEREAS, the Parties desire to resolve, by agreement, the appropriate sanctions and remedial measures to avoid protracted motion practice and to permit the prompt management of the remaining discovery in this action.

RECITAL OF DISCOVERY VIOLATIONS

NOW, THEREFORE

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and for other good and valuable consideration, the Parties agree as follows:

1. DEFINITIONS

For purposes of this Agreement, the following terms have the meanings set forth below: (a) "Court" means the judicial body presiding over the above-captioned action; (b) "Sanctionable Conduct" means the conduct described in the Recital of Discovery Violations and any related failures to preserve, search for, collect, review, or produce relevant ESI or documents; and (c) "Producing Party" and "Receiving Party" have their usual meanings in discovery practice.

2. COURT FINDINGS

The Parties agree and represent that, based upon the investigation and facts detailed in the Recital of Discovery Violations, the facts supporting Sanctionable Conduct are as follows:

3. SANCTIONS

The Parties agree that the following sanctions shall be imposed as final resolution of Sanctionable Conduct. Unless otherwise specified, each selected sanction is effective immediately upon entry by the Court.

Monetary sanction payable to the opposing party in the amount of $ to compensate for reasonable expenses, including attorneys' fees, caused by the Sanctionable Conduct.

Evidentiary sanction in the form of an adverse inference instruction to the trier of fact that the withheld or destroyed documents would have been favorable to .

Issue preclusion with respect to the following facts or issues:

Exclusion of specified evidence: the following categories of evidence shall be excluded from use at trial:

Default judgment or dismissal as to the following claims or defenses:

4. PAYMENT TERMS

5. DISCOVERY SCHEDULE AND REMEDIAL PRODUCTION

The Producing Party shall produce the documents and ESI identified in this Agreement in accordance with the schedule below. All productions shall be complete, indexed, and accompanied by a written privilege log for withheld documents.

6. PRESERVATION, SPOILATION REMEDIES, AND FORENSIC REVIEW

The Parties agree that any further failure to preserve relevant materials shall constitute additional Sanctionable Conduct. The Producing Party shall take the following preservation and remedial actions:

7. ATTORNEYS' FEES AND COSTS

The Parties agree that the prevailing party for purposes of this Agreement shall be entitled to recover reasonable attorneys' fees and costs incurred in bringing the matter of Sanctionable Conduct to the attention of opposing counsel and the Court. The Parties further agree that reasonable fees shall be determined by agreement of counsel or by submission to the Court if the Parties cannot agree.

8. ENFORCEMENT

The Parties agree that this Agreement may be submitted to the Court for incorporation into an Order. Entry of an Order incorporating this Agreement shall be enforceable by motion to the Court, including but not limited to motions for contempt, supplemental relief, or for further sanctions as permitted by law.

9. CONFIDENTIALITY

Unless otherwise ordered by the Court, the terms of this Agreement, including the existence of any payment or remedial measures, shall be treated as confidential to the extent allowed by law. Disclosure of protected materials or the terms of this Agreement shall be governed by the protective order in effect in this action.

10. MISCELLANEOUS

Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the jurisdiction in which the Court sits, without regard to choice of law principles.

Entire Agreement: This Agreement contains the entire understanding of the Parties with respect to the subject matter hereof and supersedes and replaces any prior agreements or understandings, whether written or oral, concerning the subject matter hereof.

Severability: If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall remain in full force and effect.

Notices: All notices required or permitted under this Agreement shall be in writing and shall be deemed delivered when hand-delivered, sent by overnight courier, or mailed by certified mail, return receipt requested, to counsel of record for the receiving party at the addresses set forth below or to such other address as a Party designates in writing.

Amendment and Waiver: This Agreement may be amended or modified only by a writing signed by both Parties. No waiver of any provision shall be effective unless in writing and signed by the waiving party.

Counterparts: This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.

CERTIFICATION

By signing below, each signatory certifies under penalty of sanctions for misrepresentation that he or she is authorized to enter into this Agreement on behalf of the Party identified, that the statements contained herein are true to the best of that signatory’s knowledge, and that the Parties have had the opportunity to consult with counsel prior to execution.

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