In Klipsch Group Inc v ePRO E-Commerce Ltd (Case Nos 16-3637 and 16-3726, January 25 2018, Lynch J), the US Court of Appeals for the Second Circuit has rejected a sanctioned party’s position that sanctions must be proportional to either the value of the evidence uncovered by remedial measures or the ultimate value of the case, and upheld discovery sanctions that amounted to greater than 100 times the district court’s appraisal of the likely damages in the case. In doing so, the court adopted a standard that “discovery sanctions should be commensurate with the costs unnecessarily created by the sanctionable behaviour”.

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