Lawyers Are Responsible For Their Clients’ Production of Documents

Earlier this week, I wrote about lawyers obstructing discovery by responding to discovery interrogatories themselves, either by letter or by an unverified response, rather than by having their client answer. Federal Rule of Civil Procedure 33(b) makes clear that’s just plain wrong.

 

When it comes to requests for production of documents (or electronically-stored information), the Rules are a bit more intricate — but, when used properly, more powerful.

 

Unlike Rule 33, Rule 34 (relating to requests for production of documents and electronically stored information) has no similar requirement that the party sign the responses. Thus, a lawyer may indeed sign responses to document requests. But a lawyer signs the response subject to Rule 26(g):

 

(1) Signature Required; Effect of Signature. Every disclosure under Rule 26(a)(1) or (a)(3) and every discovery request, response, or objection must be signed by at least one attorney of record in the attorney’s own name—or by the party personally, if unrepresented—and must state the signer’s address, e-mail address, and telephone number. By signing, an attorney or party certifies that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry:

 

(A) with respect to a disclosure, it is complete and correct as of the time it is made; and

(B) with respect to a discovery request, response, or objection, it is:

 

(i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law;

(ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and

(iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.

 

(2) Failure to Sign. Other parties have no duty to act on an unsigned disclosure, request, response, or objection until it is signed, and the court must strike it unless a signature is promptly supplied after the omission is called to the attorney’s or party’s attention.

 

Again, the rule leaves little doubt: every response must be signed — which means a vague letter generally discussing discovery is insufficient, as are a variety of boilerplate objections without a real answer — and the signing is a certification by the lawyer that the production is consistent and adequate.

 

As I’ve written before, even well-intentioned lawyers can sometimes deceive themselves into lying in service of their clients. The financial and practical incentives can be quite large for some lawyers to become a “truth shield” for their clients by exaggerating “facts” about discovery, and by feigning ignorance (or by intentionally remaining ignorant) about the evidence in the clients’ possession.

 

But the Rules account for those possibilities, and keep lawyers in their rightful place. As Rule 26(g) continues in subsection (3):

 

(3) Sanction for Improper Certification. If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney’s fees, caused by the violation.

 

When lawyers think of sanctions in federal court, they tend to think of Rule 11 (for false statements in filings) or 28 U.S.C. § 1927 (which allows sanctions against a lawyer who “multiplies the proceedings in any case unreasonably and vexatiously”), but Rule 26(g)(3) is more potent than either. Unlike Rule 11, Rule 26(g)(3) includes no “safe harbor” allowing a lawyer to correct an offending document. Unlike § 1927, which says a court may sanction a lawyer for obstructing the proceedings, Rule 26(g)(3) says the court must sanction a lawyer for filing an improper certification.

 

There’s also no “bad faith” requirement, either. A lawyer can run into mandatory sanctions, without any safe harbor, for an inadequate investigation of their client’s documents. As recently explained by Magistrate Judge Terence P. Kemp in Brown v. Tellermate Holdings Ltd., 2014 U.S. Dist. LEXIS 90123 (S.D. Ohio July 1, 2014), copy available at ediscoverylaw.com:

 

Those sanctions can be imposed if an attorney fails in his or her “duty to make a reasonable investigation to assure that their clients have provided all available responsive information and documents.” Bernal v. All American Investment Realty, Inc., 479 F.Supp.2d 1291, 1333 (S.D. Fla. 2007). This rule, like the parallel provisions of Fed.R.Civ.P. 11, contains “an objective standard” governing the reasonableness of counsel’s actions, see National Ass’n of Radiation Survivors v. Turnage, 115 F.R.D. 543, 555 (N.D. Cal. 1987), so that counsel may not simply plead lack of subjective good faith as a way to avoid sanctions. “An attorney has made a ‘reasonable inquiry’ if the ‘investigation undertaken by the attorney and the conclusions drawn therefrom are reasonable under the circumstances…. Ultimately, what is reasonable is a matter for the court to decide on the totality of the circumstances.’” Quinby v. WestLB AG, 2005 U.S. Dist. LEXIS 35583, 2005 WL 3453908, *4 (S.D.N.Y. Dec. 15, 2005), quoting the 1983 Advisory Committee Notes to Rule 26.

 

On the basis of those principles, the Court in Tellermate Holdings awarded sanctions against the attorneys for the responding party, which had tried every trick in the book, from “failure either to learn or communicate the truth about matters related to discovery,” to “counsel’s failure to make the reasonable inquiries required by Rule 26(g),” to a “document dump … largely consisting of irrelevant and unresponsive documents,” to the excessive designation of documents as “Attorney’s Eyes Only.”

 

In short, Rule 34 allows a lawyer to stand in for their client in responding to discovery, but, when a lawyer does so, they are representing to the opposing party and to the court that they have done a reasonable investigation to assure that their clients have provided all available responsive information and documents.

 

 

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