Filing a motion for sanctions under Rule 37(e) requires a strong evidentiary foundation. But there's another factor that's just as critical — timing.
Courts have broad discretion in how they handle sanctions, and understanding the right moment to file your motion can be the difference between securing a remedy and walking away with nothing. A recent federal court decision by United States District Court Judge Iain Johnston from Northern District of Illinois shines a light on how litigators can get tripped up not by the merits of their motion, but by the when.
The Court didn’t mince words. While acknowledging that the plaintiff’s concerns about spoliation were valid, the judge ultimately denied the sanctions motion as premature, citing the ongoing discovery timeline and the lack of an imminent trial. In doing so, the Court introduced the concept of a “sweet spot” for sanctions motions — a narrow window where the facts are fully developed, the remedy is clear, and the request doesn’t waste the Court’s time.
Know the Sweet Spot — and Your Judge
The Court was candid: file a sanctions motion too early, and you're wasting judicial resources before discovery is complete. File it too late, and you risk waiving your argument or losing access to the remedy you seek. The timing isn’t just procedural — it’s strategic.
In this case, the plaintiff requested a permissive adverse inference jury instruction based on alleged ESI spoliation. But the Court pointed out that such a remedy only matters if the case proceeds to trial — and at this stage, it wasn’t clear that it would. Summary judgment was still in play, and expert discovery wasn’t finished. The takeaway? Don’t ask for a remedy the Court can’t yet give you. This decision is interesting, because many successful sanctions motions result in either a permissive or mandatory adverse inference instruction. I’ve questioned that rationale before when less than 1% of cases go to trial, and now we have District Judge Johnston taking the same position. I have to wonder if other judges will start to determine remedies that are more applicable to a given situation.
This decision highlights the importance of understanding not only the procedural posture of your case but also the preferences and practices of your judge. Some judges want to be notified of spoliation issues early, even informally. Others prefer to address these matters once discovery is closed. Either way, raising the issue with the court before jumping into formal briefing can help avoid missteps.
What Factors Matter to the Court?
To determine whether a sanctions motion is untimely, the Court referenced the five factors outlined in Goodman v. Praxair Services, Inc.:
- How much time has passed since discovery closed,
- Whether dispositive motions have been filed,
- Whether the motion comes on the eve of trial,
- Whether the Court has issued deadlines for sanctions motions, and
- Whether the movant offers a reasonable explanation for the timing.
While the typical application of these factors addresses late filings, this Court made clear they apply just as much to early ones.
The message? Courts want to manage their dockets efficiently. If a sanctions motion could be mooted by a ruling on summary judgment — or if the necessary facts aren’t yet developed — the Court is unlikely to invest the time to adjudicate it. And it may just dismiss it outright.
Best Practices for Litigators
This decision offers practical guidance for litigators navigating potential spoliation of ESI:
- Start with opposing counsel. If you believe spoliation has occurred, raise it with the other side first. Then be prepared to inform the Court if those discussions fail.
- Engage the Court early — but informally. A status conference may be the best place to raise concerns and get a read on how your judge wants to handle them.
- Match your remedy to your timing. If you're asking for a trial-based remedy like an adverse inference, ensure that trial is on the horizon.
- Don’t assume the judge knows. Especially in cases where discovery is managed by a magistrate, the district judge may not be aware of prior spoliation allegations. Keep them informed, and do it strategically.
The Bottom Line
Filing a sanctions motion isn’t just about proving spoliation — it’s about doing so at the right time, for the right reasons, and in the right way. Jump the gun, and you could spend your client’s money and the Court’s time only to have your motion denied on procedural grounds. Wait too long, and the window may close.
Understanding your judge’s expectations and tailoring your strategy accordingly is a critical skill for litigators. If sanctions are in play, start the conversation early, raise the issue informally when appropriate, and time your motion to maximize the chances of success — not frustration.
