The Increasing Importance of Rule 26(g) to Control e-Discovery Abuses

A federal judge in Baltimore added teeth to Rule 26(g) with an opinion enforcing the mandatory sanctions provision. Branhaven LLC v. Beeftek, Inc., _F.R.D._, 2013 WL 388429 (D. Md. Jan. 4, 2013). This appears to be the first published ruling of its kind. That’s amazing when you consider that subsection (g) of Rule 26 went into effect in 1983. This well-intentioned rule has been hidden in the sands of time, toothless, for many years. It might have remained buried and forgotten forever, but for an opinion in 2008 by then Magistrate Judge Paul Grimm. Mancia v. Mayflower Textile Services Co., 253 F.R.D. 354 (D. Md. 2008). Judge Grimm, who is now a U.S. District Court Judge in Baltimore, exposed Rule 26(g) to the e-discovery world and called it the most underutilized and misunderstood rule in the book.  But even Judge Grimm in Mancia did not actually use Rule 26(g) to impose sanctions. He used it in Mancia as a side-note to his main theme of cooperation.

Judge Grimm was right about 26(g) being a stealth rule. It went into effect in 1983. There was a brief flurry of interest from some members of the Bar and Judiciary who were active in Rules reform. They hoped the new rule would fulfill its stated purpose of discouraging discovery abuse. Unfortunately, this flurry of interest was not shared by most in the judiciary. After a few initial failures most practitioners forgot about subsection (g). In my experience few practitioners ever tried to use 26(g) in litigation before Mancia. That is why Rule 26(g) did not have the intended effect to curb discovery abuses.

Before Mancia I had never seen, nor heard of, a judge enforcing 26(g). I had not focused on sub-subsection (3), 26(g)(3), which requires the imposition of sanctions when 26(g) is violated. And trust me, it is violated by sloppy lawyers everyday. It is violated every time they sign a form discovery responses with little or no thought, much less the reasonable efforts required by the rules. Here is the mandatory sanctions language of (g)(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.

There is no discretion afforded to the judge by the Rule. That is highly unusual where sanctions are concerned. There is not even a requirement of bad faith or intent, as there is for any other sanction. Sanctions must be imposed upon proof of violation without substantial justification. Yet, has anyone ever heard of a sanction being entered under the rule? I have not, and I’ve been in litigation since before 1980.

Judge Gauvey Enforces the Rule

Mancia pointed all of this out in 2008, but, unlike technology, the judicial system moves slow. The first opinion actually enforcing 26(g) has just now manifest, five years after Mancia, and thirty years after the rule’s enactment. It should come as no surprise that the sanctions were imposed by one of Judge Grimm’s colleagues on the Baltimore bench, Magistrate Judge Susan Gauvey. Branhaven LLC v. Beeftek, Inc., _F.R.D._, 2013 WL 388429 (D. Md. Jan. 4, 2013). This is a well-reasoned opinion. It is filled with good quotes that you may want to use in your motions, many of which I have highlighted in the linked opinion. It should be especially handy to cite when going against sloppy opposing counsel. As we all know, there is no shortage of those around, especially when it comes to e-discovery.

The Plaintiff corporation, and both of Plaintiff’s attorneys, a senior partner and an associate, were sanctioned in Branhaven. They were ordered to pay the costs and fees incurred by defense counsel in connection with Plaintiff’s “large, disorganized and last minute document production.” Branhaven at *1. Judge Gauvey followed the clear language of the rule requiring sanctions:

The Court has found a violation of the rule without substantial justification and accordingly must impose an appropriate sanction, which in the Court’s opinion are the manpower and equipment costs defendants incurred as a result of the last minute and inadequate form and manner of the document production and reasonable attorneys’ fees in bringing this violation to the Court’s attention.

Id. at *7.

The financial obligation to pay the costs and fees, with exact amount to be determined, was made joint and several between plaintiff and its attorneys. Judge Garvey has left it to plaintiff and plaintiff’s counsel to sort out between themselves who pays how much. What a situation for a lawyer to be in!

Rule 26(g) is the Rule 11 of discovery, but unlike Rule 11, a judge must impose sanctions if it is violated. In spite of the rule’s terminology, this is the first time I have ever seen a sanction imposed. Thank you Judge Gauvey for having the wherewithal to enforce the rule. Now that Judge Garvey has broken the ice, will other judges follow suit? Unless judges enforce the rules, they do us little good.

DLA Piper Makes the Move

Thanks also goes to DLA Piper, who, as defense counsel, brought the clear violation of the rule by plaintiff’s counsel to the attention of the court. Apparently they are listening to the sage advice of their globe-trotting e-discovery guru, Browning E. Marean. I ran into Browning at Legal Tech last month and snapped his photo. What a valuable resource and ambassador of  good will he is for one of the world’s largest law firms. Although Rule 26(g)(3) allows for sua sponte enforcement by the judge, more lawyers need to try to move it along. We need to ask for judges to enforce Rule 26(g). We now have a case on point to help us to do that. Let us follow the Pied Piper and join this justice parade. The end result will be a cleaner, more efficient discovery system.

Compliance with Rule 26(g) is Important

Violations of the rule are costly to everyone as the Branhaven opinion clearly shows. But worse than lost money, violations undercut the core of our system of justice. In the U.S. Common Law system the pursuit of truth is in the hands of lawyers, not judges, as it is in the rest of the world using the  Napoleonic Civil Law system. As Judge Gauvey so eloquently put it at page *6 of her opinion:

Plaintiff’s counsel asserts that “[n]one of Branhaven, Scidera, [or any of plaintiff’s counsel] intentionally concealed any discoverable material, nor did we take any actions that were designed to frustrate these proceedings or the discovery process in particular.” (ECF No. 59–3, 7, ¶ 27). That, however, is not the standard. As plaintiff’s counsel has an affirmative duty to assure that their client responds completely and promptly to discovery requests. Their inaction seriously frustrated the defense of this case. The record here demonstrates a casualness at best and a recklessness at worst in plaintiff’s counsel’s treatment of their discovery duties. I agree with defense counsel that the attorneys abdicated their responsibilities while representing that they had not. If all counsel operated at this level of disinterest as to discovery obligations, chaos would ensue and the orderliness of the discovery process among counsel in federal courts, which is exquisitely dependent on honorable attorney self-regulation, would be lost. (emphasis added)

The Duties of Counsel of Record under Rule 26 Cannot be Delegated

Plaintiff’s counsel here was a picture of over-delegation. They just asked the client to respond to the defendants e-discovery requests, and then walked away. Set it and forget it is not permitted by the rules. Lawyers must supervise all discovery, especially complicated e-discovery responses. Both the rules and common law make that clear.

In Branhaven the client made a mess of things, forcing the defendant to incur unnecessary expense and delay. By the way, the answer is not to delegate to an e-discovery vendor either. See: Peerless Indus., Inc. v. Crimson AV, LLC (N.D. Ill. Jan. 8, 2013); and, Don’t Pass The eDiscovery Buck To The Vendor. Only lawyers, counsel of record, can sign discovery responses. They, and they alone, are fully responsible, although, of course, a court can sanction the client too, as happened in Branhaven.

Duty of Reasonable Inquiry

Rule 26(g) requires an attorney to certify that they have made a “reasonable inquiry” in response to a discovery request. As Judge Gauvey explains at page *2:

[D]efendants brought the conduct to the Court contemporaneously charging a violation of Rule 26(g), that is, that plaintiff’s counsel had certified—incorrectly—in signing the response to defendants’ requests for production on or about March 21, 2012, that counsel had done so “to the best of [his or her] knowledge, information and belief formed after reasonable inquiry.” The Advisory Notes to Rule 26(g) provide that “the signature certifies that the lawyer has made a reasonable effort to assure that the client has provided all the information and documents available to him that are responsive to the discovery demand.” (emphasis added).

Plaintiff’s counsel in Branhaven made no reasonable inquiry, they just told their client to do it. To make matter worse, in the response plaintiff’s counsel stated that they would “make the responsive documents available for inspection and copying at a mutually convenient time.” Id. 

Object Now or Forever Hold Your Peace

That is yet another lesson for the Bar in Branhaven. File an objection or get an extension to a request for production. Do not just say you will produce everything as requested unless you really mean it. Rookie mistake I know, and I don’t see many doing that. But if an attorney does respond like that, then they had better deliver, which in this case they did not.

Here is Judge Gauvey’s explanation of how you should respond:

There are only three appropriate responses to a request for production of documents: (1) an objection to the scope, time, method and manner of the requested production; (2) an answer agreeing to the requested scope, time, place and manner of the production; or (3) or a response offering a good faith, reasonable alternative production which is definite in scope, time, place or manner.

Plaintiff did none of the three. Rather, with its meaningless and arguably misleading response, plaintiff simply tried to buy time and technically comply with Rule 34. One of plaintiff’s counsel essentially admitted as much.

Id.

After many delay the plaintiff here finally produced thousands of PDF files (flat and metadata stripped). That was equivalent to paper and could not be searched without processing. To make matter worse there was no Bates-stamping. You know I am not fan of Bates-stamping, which I consider an outdated relic of Nineteenth Century technology.  HASH: The New Bates Stamp, 12 Journal of Technology Law & Policy 1 (June 2007). But if you produce in a paper, or its equivalent as happened here, it is needed.

The Defendant in Branhaven had specifically asked for Tiff and Load with full metadata so they could use their e-search platform. Plaintiff’s excuse for not doing so is that is how the defendant produced to them. Lame. Plaintiff’s counsel failed to mention that the Defendant had first produced to plaintiff with Tiff and load (full metadata), then reproduced the same thing again in PDF at the Plaintiff’s request. They did that as a courtesy because the Plaintiff’s counsel was not going to use e-discovery review tools, they were just going to print to paper and review. Sound familiar?

Sloppy Practitioner’s Beware

The plaintiff’s failure to produce with full metadata in Branhaven was held to be a violation of Rule 34(b)(2)(E)(ii) “reasonably useable form” requirement. Although the plaintiff here finally did make a production, it was late and in the wrong format. Defense counsel called it a last-minute document dump. Id. at *3. The court agreed and concluded that plaintiff’s counsel had failed to make a “reasonable effort” as required by Rule 26(g) “to assure that the client has provided all the information and documents responsive to the discovery demand.” Here are Judge Gauvey’s words:

*4 First, Branhaven delayed approximately five months before seeking an outside vendor from the date of the request for production. While a one month delay to allow an in house effort to access the servers might be seen as acceptable; a five month delay with its impact on the opposing party’s discovery is not.

Second, Branhaven is the plaintiff! Surely before initiating a lawsuit, which of course has resulted in substantial defense costs, Branhaven must have understood that it necessarily also would be subject to discovery demands with the attendant costs.

Third, Branhaven essentially misled defendants and their counsel, in its affirmative statement that responsive documents would be “available for inspection and copying at a mutually available time,” while in fact not knowing what if any responsive documents there might be and when if ever they would be identified and produced.

Making a document dump a couple of days before key depositions with metadata stripped was not the only “dirty trick” played by these plaintiff’s counsel. They also scheduled four non-party depositions in four different states for the same time. They did so without consultation as to defendants’ counsel’s availability, and with only three business days’ notice. Plaintiff’s counsel then cancelled all four of the depositions without explanation after, in the court’s words defendants’ counsel had scrambled to obtain, and educate, counsel for all four, within 24 hours of the depositions. Plaintiff offers no acceptable explanation of this conduct. Id. at *1. Would that not piss you off?

Although Judge Gauvey did not sanction plaintiff’s counsel for this deposition scheduling conduct, that was only because defendant did not make a timely objection. This kind of background behavior must have influenced Judge Gauvey’s decision. It must have made it easier for her to sanction these bad boys under Rule 26(g).

Based on this record  and upon motion by defense counsel for sanctions under Rule 26(g) the Court held at page *4 that:

[P]laintiff’s counsel in their execution of the Response to the requests for production wrongly certified that they were responding to the document requests “to the best of [their] knowledge, information and belief after reasonable inquiry. Plaintiff’s counsel said he “promptly” sent the document request to his clients (ECF No. 59–3, 4 ¶ 11), but quite apparently did no meaningful follow-up.

One of the many mistakes cited in the opinion is the failure of plaintiff’s counsel to ensure that their clients search included all of their email systems. Yup, that’s right. Seems incredible to me, and to Judge Gauvey too, who wrote:

Plaintiff’s delay in addressing the lack of access to these email servers is inexcusable. There is no more obvious and critical source of information in the 21st century than a company’s email accounts. Plaintiff’s counsel’s failure to identify and produce this discovery in a timely fashion and in an acceptable form and manner while suggesting—if not misleading defendants—that it had identified responsive documents is sanctionable.

Id.

Use of Disproportionate Discovery as a Weapon 

Discovery abuses are hardly new and unique to electronic discovery. Rule 26(g) was enacted to try to curb these abuses. As the Advisory Committee Note to the 1983 Amendment creating Rule 26(g) pointed out:

Excessive discovery and evasion or resistance to reasonable discovery requests pose significant problems. … The purpose of discovery is to provide a mechanism for making relevant information available to the litigants. “Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.” Hickman v. Taylor, 329 U.S. 495, 507 (1947). Thus the spirit of the rules is violated when advocates attempt to use discovery tools as tactical weapons rather than to expose the facts and illuminate the issues by overuse of discovery or unnecessary use of defensive weapons or evasive responses. All of this results in excessively costly and time-consuming activities that are disproportionate to the nature of the case, the amount involved, or the issues or values at stake. Given our adversary tradition and the current discovery rules, it is not surprising that there are many opportunities, if not incentives, for attorneys to engage in discovery that, although authorized by the broad, permissive terms of the rules, nevertheless results in delay.

The only thing different from 1983 when these words were written, and thirty years later, is that now almost all documents are electronic, not paper. This rapid transformation has created even more opportunities for discovery tactics, for evasion, for excessively costly and time consuming discovery disproportionate to the case. This may be an old rule, an underutilized rule, but it is still on the books to address the same kind abuses in electronic form.

If you are up against an opposing counsel who, when it comes to e-discovery at least, is still playing the old game of hiding his or her head in the sand, and if this conduct prejudices your client, then fight back. You do not have to prove bad faith, or intent, to protect your client (and the profession) by sanctioning the offenders. You only have to show they signed the discovery response in violation of the reasonable efforts requirement of Rule 26(g). There is nothing uncooperative about that.

Every discovery lawyer should read Rule 26(g) at least once a year. So here it is in all of its once-hidden glory.

(g) Signing Disclosures and Discovery Requests, Responses, and Objections.

(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.

(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.

Conclusion

Use Rule 26(g) in your practice; follow it, and point out its violations by opposing counsel. I am sure that if the clear terms are pointed out to the judge presiding over your case, that they will follow the rule and the holding in Branhaven.  As more and more judges do that, it will be easier for those of us who know and live by the rules to engage opposing counsel in a cooperative endeavor.

Cooperation is the key to successful e-discovery legal practice, as the standard EDBP chart makes obvious. But cooperation requires compliance with the rules, and motions for sanctions where needed as a stick to force cooperation. A carrot alone never works in the rough and tumble world of litigation. Judge Grimm, who re-introduced us to old Rule 26(g) in Mancia, know this very well. Discussion of the rule was just a side-note in Mancia to the primary theme of cooperation. Mancia is one of those landmark cases in the annals of e-discovery, one that every lawyer should know by heart. Mancia v. Mayflower Textile Services Co., 253 F.R.D. 354 (D. Md. 2008); Also see Mancia v. Mayflower Begins a Pilgrimage to the New World of Cooperation, 10 Sedona Conf. J. 377 (2009 Supp.).

Cooperation is required by the rules and the common law. Not only that, cooperation is good for your client, and good for our system of justice. But still many counsel do not get it, they fight at the wrong time and with dirty tricks, like with last-minute document dumps and metadata strips, or setting and canceling depositions. For these counsel we need routine enforcement of Rule 26(g). That is, after all, why 26(g) was enacted back in 1983. We have got to get back to that spirit and curb the discovery abuses of counsel.

We should all remember Judge Gauvey’s words, that counsel has an affirmative duty to assure that their client responds completely and promptly to discovery requests. We should all pay close attention to what is happening before certifying a discovery request or discovery response. This is a difficult challenge faced by all attorneys, both plaintiffs and defense counsel, both inside counsel and out. It is going to take a lot of conscientious work on the part of all attorneys and litigants. We need to begin by creating a clear understanding and explanation as to who is ultimately responsible for what. There is no one right answer to these questions. Each case is different. If we are doing our job right we are in a constant state of learning, change, and adaptation. The right answer in any particular case depends on many factors and circumstances, but common to all of them is the requirement of good faith and reasonable efforts.

Please feel free to leave any comments you may have on the issues discussed.