Although the advent of ediscovery poses significant challenges when interpreting many of the Federal Rules of Civil Procedure, practitioners must remember their ethical duty to their client and opposing counsel during discovery remains unchanged.
Fed.R.Civ.P. 26(g)(1) requires an attorney of record to sign every discovery response and certify that, upon a reasonable inquiry, the response is legitimate, consistent with existing law and made in good faith. Accordingly, when motions for sanctions arise, courts are empowered to determine what constitutes a “reasonable inquiry” on the facts of each case. If a court determines the party acted in bad faith, it may impose sanctions under Rule 26(g)(3). These sanctions take many forms, but decisions such as Qualcomm Inc. v. Broadcom Corp., in which the plaintiff was sanctioned $8.5 million for “monumental and intentional” discovery misconduct, are painful reminders of the consequences of missteps in the discovery process. Although the attorneys won their battle over sanctions levied against them individually for their role in the Qualcomm saga, the case lives on and demonstrates the reputational and personal impacts discovery may have on the modern practitioner.
In the wake of Qualcomm, courts are ordering sanctions and referencing Rule 26(g) with increasing frequency. However, the prudent attorney can avoid making the ethical missteps that Rule 26(g) condemns with a proactive approach that is consistent with the spirit of an open, thorough and transparent discovery process.
Adhering to the bedrock discovery principle that all parties be forthcoming with all relevant information they possess is paramount to satisfying the “reasonable inquiry” requirement. In Kosher Sports, Inc. v. Queens Ballpark Co., the Eastern District of New York found that the plaintiff’s attorney warranted 26(g) sanctions when he knew of, but did not disclose the existence of recorded conversations between his client and a relevant non-party when certifying a discovery response asking for similar conversations. Although the attorney later attributed his false certification to a “failure of recollection,” an unconvinced court ordered sanctions for bad faith certification of responses intended to cause unnecessary delays in discovery.
Additionally, in Limone v. United States, the District of Massachusetts discovered that during the government’s two-year-long discovery stonewalling effort, the FBI had not allowed the government lawyers handling the case to see the unredacted versions of the documents in question. Citing this behavior as a direct contradiction of the reasonable inquiry requirement under Fed.R.Civ P. 26(g), the court found the government’s actions constituted bad faith. Finding the government’s behavior warranted sanctions, the court scheduled a hearing to determine which costs were reasonably related to the bad faith conduct. Although the conduct in these cases may seem less significant in scope than in Qualcomm, practitioners must take note that courts are showing minimal tolerance for any level of deceitful behavior especially in consideration of the Rule 26(g) requirement. At the subsequent August 12, 2011 hearing, the court noted it appreciated the fact that trial counsel was between the “proverbial rock and a hard place” with an uncooperative client. However, the counsel’s client acted in bad faith regarding discovery practices and the court accordingly awarded $716,746.39 in total fees and costs for the plaintiffs’ attorneys.
In addition to being forthright, certification in the complex world of ediscovery also means that an attorney has made a reasonable inquiry into a client’s data practices and the technology being used to conduct searches. In Play Visions, Inc. v. Dollar Tree Stores, Inc., the Western District of Washington found the plaintiff’s consistent pattern of inaccurate responses, discovery addendums and other misconduct was largely a result of counsel’s inactive role in the discovery process. Finding sanctions appropriate, the court ordered the plaintiff’s counsel – who failed to make a “reasonable inquiry” before certifying his client’s false discovery responses – split the $137,000 in costs related to misconduct. Although the additional complexities of ediscovery might prove challenging, Play Visions depicts the dangers of relying on the client to do all the work. Understanding the intricacies of a client’s technology is imperative going forward.
While still relatively minor in total volume, sanctions referencing 26(g) are trending upward and often for less than egregious misconduct. The challenges posed by this trend require an attorney to adhere to basic discovery principles. Before certifying a discovery response, review its legitimacy and act accordingly. Failure to do so might cause irreparable harm to you and your client.