Timing Considerations for Rule 37(e) Sanctions Motions

Timing Considerations for Rule 37(e) Sanctions Motions

According to a Minerva26 article by Kelly Twigger, evidentiary support is essential to Rule 37(e) sanctions motions, but timing may be just as decisive. A recent decision from Judge Iain Johnston of the Northern District of Illinois underscores how even a well-supported sanctions motion can fail if filed at the wrong moment. Twigger highlights that this case serves as a cautionary tale for litigators: understanding not only what to file but when to file can make the difference between a remedy granted and a motion denied.

The court acknowledged the plaintiff’s legitimate concerns about ESI (electronically stored information) spoliation but ultimately denied the motion for sanctions as premature. With summary judgment motions pending and expert discovery ongoing, the Court declined to consider a remedy, such as an adverse inference jury instruction, that might never become relevant. 

Judge Johnston’s ruling introduced the idea of a “sweet spot” for Rule 37(e) sanctions motions: a narrow window when discovery is complete, the facts are clear, and the remedy is appropriately tailored to the stage of litigation.

The decision also highlighted the strategic importance of knowing your judge. Some judges expect early notification of spoliation concerns, even informally; others prefer to address them after discovery concludes. Either way, raising the issue outside formal briefing, perhaps in a status conference, can prevent procedural setbacks. The Court drew on Goodman v. Praxair factors to emphasize that a motion filed too early may be just as problematic as one filed too late.

For managing partners, Twigger’s article shows the importance of coaching litigation teams on judicial preferences and procedural timing, which can reduce unnecessary spend and increase the odds of a successful motion.