ANALYSIS: Tracking the Incredible Shrinking Lawyer Sanctions

The precipitous drop in mentions of federal court-ordered sanctions against lawyers over the past decade isn’t limited to Rule 11 and inherent sanctions: A further search of federal appeals and district court dockets revealed that mentions of additional types of such sanctions—for vexatious litigation and discovery abuses—have seen an almost identical drop over the past decade.

What’s clear is that there’s been a massive decline, but what’s less clear are the reasons for it. To make matters more interesting, there’s even an outlier—a rule that doesn’t seem to be playing by the rules.

Earlier this month, I wrote that federal court mentions of Rule 11 and “inherent powers” sanctions have tanked 91% and 96%, respectively, since 2013. This was such a remarkable drop that I couldn’t help but research additional sanction types to see if they followed the same pattern.

The mentions of 28 USC §1927 sanctions (for vexatious litigation) and FRCP 37 sanctions (for discovery abuses) have plunged 94% and 96%, respectively, between 2013 and 2022. That’s a mean drop of 94% for all four sanction types.

And similar to the Rule 11 and inherent powers data, there were noticeable dropoffs for these two sanction types in the middle of the last decade.

It’s no longer up for debate whether there’s been a remarkable drop in sanctions mentions in federal court orders since 2013. The question now is: What precipitated this across-the-board fall?

Maybe the 2015 revisions to Rule 37(e) caused a decline in courts’ use of inherent authority. But that explanation is up for debate. And federal courts still rely on their inherent power to sanction, as the district court in Trump v. Clinton did last month when it sanctioned Donald Trump and his attorney, Alina Habba, to the tune of almost $1 million. Furthermore, the rule’s revisions don’t explain the parallel drops in the mentions of the other three types of sanctions, all of which took their biggest nosedive at about the same time.

So I decided to do a little more digging.

There’s another discovery-focused rule, Fed. R. Civ. P. 26(g)(3), and over the past decade, the mentions of this sanction haven’t dropped like the others.

There were 23 mentions of this rule in federal appeals and district court orders in 2013, and there were 35 in 2019—the last pre-pandemic year—with an average of 32 from 2013 to 2019. But whereas the other four sanction types saw precipitous drops in mentions from 2015 to 2017, Rule 26(g)(3) saw a noticeable 38% increase from 29 to 47 mentions in 2016. This may be attributable to the rule’s 2015 amendments.

So why the discrepancy between Rule 26(g)(3) and the other four?

The rule has a very narrow application: It’s only for improper certification of discovery documents. And the wording is different than those for the other sanction types: It’s mandatory. The other rules I’ve looked at have more permissive language.

But this still leaves the question unanswered: Why are sanctions disappearing? Perhaps the explanation can be gleaned from what my fellow Bloomberg Law legal analyst, Eleanor Tyler, recently suggested: Judges are reluctant to sanction, so only really egregious conduct is punished.

This explanation, along with the search results from Rule 26(g)(3), suggests that only when a rule requires it—or in the case of extreme conduct—will a judge issue a sanction.

It’s that, or lawyers are behaving better. Take your pick.

Bloomberg Law subscribers can find related content on our Default Judgments & Sanctions Practical Guidance page and on our Discovery Practice Page.

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