Magistrate Judge Paul W. Grimm has written yet another “must read” case for all lawyers concerned with discovery. Mancia v. Mayflower Textile Services Co., Civ. No. 1:08-CV-00273-CCB (D. Md. October 15, 2008). His 30 page opinion contains an excellent overview of the federal rules and other law that require a cooperative approach to discovery. The opinion thus establishes a solid legal foundation for the new Sedona Conference Cooperation Proclamation, which I discussed at length in Hospital Defendants Martyred in the Cause of Cooperative e-Discovery. Mayflower shows that far from being a Utopian ideal, the cooperative approach to discovery promoted by Sedona is already mandated by the law.
Although I agree with Judge Grimm and his conclusions in Mayflower, I contend that for e-discovery there are additional practical, economic grounds for cooperation not applicable to other types of discovery. These additional grounds pertain to the unique nature of digital data, especially its overwhelming volume and complexity. Even if the law did not require cooperative e-discovery, and Judge Grimm shows here that it does for all types of discovery, the parties would still be well advised to adopt this approach. The alternative simply does not work for e-discovery, and even if it did, it would be too risky and expensive to carry out. Judge Grimm did not explore these additional digital specific issues in Mayflower, but that is to be expected because the underlying issues in this case were all paper-centric, and this was, after all, an opinion in a real law suit, not a law review article (although it certainly reads like one, and I mean that as a compliment!).
Is Rule 26(g) the Least Understood, Most Violated Discovery Rule?
Judge Grimm starts with a detailed examination of Rule 26(g), Fed. R. Civ. P., which requires every discovery disclosure, request, response or objection be signed by an attorney of record. The signature “certifies that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry,” the request is reasonable and the disclosure is complete and correct. In Judge Grimm’s experience, Rule 26(g) is “the least understood or followed of the discovery rules.”
Rule 26(g) and Judge Scheindlin’s Zubulake Duty
This common misunderstanding and common violation also explains why the Zubulake duty I wrote about last week is so frequently breached by attorneys. The requirement in Rule 26(g) for outside counsel to make a reasonable inquiry is one of the primary legal grounds for Judge Scheindlin’s Zubulake duty. As I wrote about last week in e-Discovery Teams Can Meet the Challenges of the “Zubulake Duty” and Control Excessive Costs, Judge Scheindlin, and most other federal judges, specifically require outside counsel to interview custodians and IT personnel to understand where ESI is stored. They have in effect determined that this is a minimum reasonable inquiry required whenever electronic evidence is involved in a case, and counsel of record cannot sign a discovery response without having first done so.
Rule 26(g) Requires Investigation, Restraint and Collaboration
The facts and circumstances in Mayflower do not really matter that much; suffice it to say that the attorneys on both sides did not understand or follow Rule 26(g) and instead engaged in knee-jerk discovery requests and objections. They did not make reasonable inquiries of the facts before promulgating or responding to discovery and did not make an adequate effort to collaborate. The opinion points out what they did wrong, including the plaintiff’s unrestrained, over-broad requests and the defendants meaningless boiler-plate responses. It also told them what they had to do now to correct the situation. But Mayflower was written as a message and instruction for the entire Bar, not just the two law firms involved in this case. That is why this is an important opinion. The conduct of the attorneys in Mayflower, as Judge Grimm takes pains to point out, is quite typical and in no way unique to this case.
Before I go into more detail on Judge Grimm’s analysis of Rule 26(g), here is a full quote of the rule itself:
26(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.
As you can see, the rule not only requires the attorney of record to certify after a reasonable inquiry that the disclosure is complete and correct, but also that the discovery is not made for an improper purpose such as to needlessly increase the cost of litigation and is not unduly burdensome or expensive considering the value of the case. The last requirement of proportionality mirrors the requirements of Rule 26(b)(2)(C) and is a key provision to e-discovery.
Rule 26(g) goes on to make the imposition of sanctions mandatory when there is a violation of the rule without substantial justification, even allowing it sua sponte by the judge with no motion for sanctions by either side. The Advisory Committee Notes to Rule 26(g) explains that:
Rule 26(g) is designed to curb discovery abuse by explicitly encouraging the imposition of sanctions. The subdivision provides a deterrent to both excessive discovery and evasion by imposing a certification requirement that obliges each attorney to stop and think about the legitimacy of a discovery request, a response thereto, or an objection. …
Rule 26(g) Contemplates an Active Judiciary
Judge Grimm takes the Bar to task for not understanding or following either the letter or spirit of this rule, and I agree with him. But he stops short of an open examination of the role of the judiciary and is, of course, somewhat constrained by his position from overt criticism of his fellow judges. Still, the implication seems clear that judges are part of the problem too. Rule 26(g) was written and designed for mandatory enforcement by the imposition of sanctions. Yet, in reality, as Judge Grimm himself says, Rule 26(g) is the least followed of discovery rules. This is because sanctions have not been automatically and consistently imposed by the judiciary as the rule intended. If they had, the Bar would not have ignored the rule. The imposition of sanctions has, for the most part, been reserved for extreme cases, and indeed, even in Mayflower, Judge Grimm did not impose monetary sanctions.
I have addressed this issue before in Hospital Defendants Martyred in the Cause of Cooperative e-Discovery. Cooperative discovery will not work unless judges buy into the program and play their part. It is not a passive role. The Advisory Committee Notes to the 1983 amendments which enacted subsection (g) clearly envisioned an active role by judges to enforce this rule:
Concern about discovery abuse has led to widespread recognition that there is a need for more aggressive judicial control and supervision. ACF Industries, Inc. v. EEOC, 439 U.S. 1081 (1979) (certiorari denied) (Powell, J., dissenting). Sanctions to deter discovery abuse would be more effective if they were diligently applied “not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent.” National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 643 (1976). See also Note, The Emerging Deterrence Orientation in the Imposition of Discovery Sanctions, 91 Harv. L. Rev. 1033 (1978). Thus the premise of Rule 26(g) is that imposing sanctions on attorneys who fail to meet the rule’s standards will significantly reduce abuse by imposing disadvantages therefor.
Because of the asserted reluctance to impose sanctions on attorneys who abuse the discovery rules, see Brazil, Civil Discovery: Lawyers’ Views of its Effectiveness, Principal Problems and Abuses, American Bar Foundation (1980); Ellington, A Study of Sanctions for Discovery Abuse, Department of Justice (1979), Rule 26(g) makes explicit the authority judges now have to impose appropriate sanctions and requires them to use it. This authority derives from Rule 37, 28 U.S.C. § 1927, and the court’s inherent power. See Roadway Express, Inc., v. Piper, 447 U.S. 752 (1980); Martin v. Bell Helicopter Co., 85 F.R.D. 654, 661-62 (D. Col. 1980); Note, Sanctions Imposed by Courts on Attorneys Who Abuse the Judicial Process, 44 U.Chi.L.Rev. 619 (1977). The new rule mandates that sanctions be imposed on attorneys who fail to meet the standards established in the first portion of Rule 26(g).
The kind of aggressive judicial control and supervision contemplated in 1983 has never materialized. Instead, a laissez-faire bench has let discovery-mad litigators run wild. It has reached the point that Rule 26(g) is not only ignored, but our very system of justice is on the verge of collapse. As Judge Grimm correctly observes:
The failure to engage in discovery as required by Rule 26(g) is one reason why the cost of discovery is so widely criticized as being excessive-to the point of pricing litigants out of court. (extensive citations omitted)
Education of attorneys as Judge Grimm has done in Mayflower is only part of the solution. The stick of sanctions must also be imposed for the words to be credible. Here is another poll to tell us what you think and, by viewing the live tallied results, find out what others are thinking.
Cooperative discovery as Judge Grimm and The Sedona Conference propose will not work unless the litigants, the lawyers, and the judges all play their part. If the judiciary does not enforce Rule 26(g) with the routine imposition of sanctions for its violation as the rule contemplated, including especially monetary sanctions, then cooperative discovery will be slow to be adopted. As Judge Grimm states at page 18 of Mayflower:
Rule 26(g) charges those responsible for the success or failure of pretrial discovery-the trial judge and the lawyers for the adverse parties-with approaching the process properly: discovery must be initiated and responded to responsibly, in accordance with the letter and spirit of the discovery rules, to achieve a proper purpose (i.e., not to harass, unnecessarily delay, or impose needless expense), and be proportional to what is at issue in the litigation, and if it is not, the judge is expected to impose appropriate sanctions to punish and deter.
Ethics Do Not Forbid Cooperation
in our Adversarial System of Justice
Judge Grimm also considered the argument that Rule 26(g) and cooperative discovery are doomed to failure, and should not be enforced by the judiciary, because it is contrary to our basic adversarial system of dispute resolution. I have also considered this ethical issue in Lawyers Behaving Badly: Understanding Unprofessional Conduct in e-Discovery where I noted the imbalance between ABA Model Rule of Professional Conduct 1.3 on diligence, and Rules 3.2, 3.3, and 3.4 on expediting litigation, candor, and fairness.
Judge Grimm correctly notes that the objection is based on a misunderstanding of the basic nature of our adversarial system of justice. At pages 20-21 of Mayflower, Judge Grimm quotes celebrated Harvard Professor Lon L. Fuller on the subject:
Thus, partisan advocacy is a form of public service so long as it aids the process of adjudication; it ceases to be when it hinders that process, when it misleads, distorts and obfuscates, when it renders the task of the deciding tribunal not easier, but more difficult. …
The lawyer’s highest loyalty is at the same time the most tangible. It is loyalty that runs, not to persons, but to procedures and institutions. The lawyer’s role imposes on him a trusteeship for the integrity of those fundamental processes of government and self-government upon which the successful functioning of our society depends. …
A lawyer recreant to his responsibilities can so disrupt the hearing of a cause as to undermine those rational foundations without which an adversary proceeding loses its meaning and its
justification. Everywhere democratic and constitutional government is tragically dependant on
voluntary and understanding co-operation in the maintenance of its fundamental processes and forms.
It is the lawyer’s duty to preserve and advance this indispensable co-operation by keeping alive the willingness to engage in it and by imparting the understanding necessary to give it direction and effectiveness. …
It is chiefly for the lawyer that the term “due process” takes on tangible meaning, for whom it indicates what is allowable and what is not, who realizes what a ruinous cost is incurred when its demands are disregarded. For the lawyer the insidious dangers contained in the notion that “the end justifies the means” is not a matter of abstract philosophic conviction, but of direct professional experience.
Amen, Professor Fuller! As a lawyer with numerous direct professional experiences with uncooperative opposing counsel, I can vouch for his assertion. Anyone who has been in the business for decades will tell the same tale. When opposing counsel ignores the rules and plays hide the ball, due process is lost and the price of justice skyrockets.
Here are Judge Grimm’s wise words on the subject from pages 21-22:
A lawyer who seeks excessive discovery given what is at stake in the litigation, or who makes boilerplate objections to discovery requests without particularizing their basis, or who is evasive or incomplete in responding to discovery, or pursues discovery in order to make the cost for his or her adversary so great that the case settles to avoid the transaction costs, or who delays the completion of discovery to prolong the litigation in order to achieve a tactical advantage, or who engages in any of the myriad forms of discovery abuse that are so commonplace is, as Professor Fuller observes, hindering the adjudication process, and making the task of the “deciding tribunal not easier, but more difficult,” and violating his or her duty of loyalty to the “procedures and institutions” the adversary system is intended to serve.
Additional Law Supporting Cooperative Discovery
Judge Grimm then refers to other rules of civil procedure, in addition to Rule 26(g), that mandate a cooperative approach to discovery. Among them is Rule 26(f), which requires counsel to confer to “consider the nature and basis of their claims and defenses,” the possibility of settlement, and to develop and agree on a proposed discovery plan to submit to the court. Judge Grimm also mentioned Rules 26(c)(1) and 37(a)(1), which prohibit the filing of discovery motions without first certifying that the moving party has conferred in good faith with the adverse party in an effort to resolve the dispute without court action. Although not mentioned, I would also add Rule 1. It starts the Federal Rules of Civil Procedure with the admonition that the rules “be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”
Judge Grimm also refers to the ABA Model Rules of Professional Conduct, Rule 3.4(d), which states that:
[A lawyer shall not,] in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party.
He also notes a federal statute restraining dilatory tactics in litigation, including discovery, by imposing personal liability on offending attorneys. 28 U.S.C. § 1927 (2008). It states that:
Any attorney . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.
Judge Grimm also includes an extensive list of case law from multiple jurisdictions supporting cooperative discovery. They are all included in footnote three of Mayflower, which I reproduce here in full as a valuable reference. (I have added paragraph breaks to make this interesting recitation of cases easier to read.)
Courts repeatedly have noted the need for attorneys to work cooperatively to conduct discovery, and sanctioned lawyers and parties for failing to do so. See, e.g., Board of Regents of the Univ. of Nebraska v. BASF Corp., 2007 WL 3342423, at *5 (D. Neb. Nov. 5, 2007) (“The overriding theme of recent amendments to the discovery rules has been open and forthright sharing of information by all parties to a case with the aim of expediting case progress, minimizing burden and expense, and removing contentiousness as much as practicable.”);
Network Computing Servs. Corp. v. CISCO Sys., Inc., 223 F.R.D. 392 (D.S.C. 2004). In Network Computing Servs., the court discussed problems caused by failures of counsel and parties to approach discovery more cooperatively and professionally, stating, “The discovery beast has yet to be tamed,” 223 F.R.D. at 395 (quoting Patrick E. Higginbotham, So Why Do We Call Them Trial Courts?, 55 SMU L. Rev. 1405, 1417 (2002)), and taking note of United States District Judge Wayne Alley’s caustic observation that “[i]f there is a hell to which disputatious, uncivil, vituperative lawyers go, let it be one in which the damned are eternally locked in discovery disputes with other lawyers of equally repugnant attributes.” Id. (quoting Krueger v. Pelican Prod. Corp., C/A No. 87-2385-A, slip op. (W.D. Okla. Feb. 24, 1989)). The district court judge affirmed the recommendation of a magistrate judge that sanctions for discovery abuse were appropriate, and instead of imposing a monetary sanction, ordered that the jury would be informed of the misconduct. Id. at 395-401.
See also, e.g., Buss v. Western Airlines, Inc. 738 F. 2d 1053, 1053-54 (9th Cir. 1984) (“The voluminous file in this case reveals that a vast amount of lawyer time on both sides was expended in largely unnecessary paper shuffling as the parties battled over discovery and preliminary matters. . . . It is not the purpose of this decision to assess fault. The trial judge, however, was not at fault. A judge with a caseload to manage must depend upon counsel meeting each other and the court halfway in moving a case toward trial.”);
Flanagan v. Benicia Unified Sch. Dist., 2008 WL 2073952, at *10 (E.D. Ca. 2008) (“The abusiveness of plaintiff’s discovery responses indicate a lack of cooperative spirit. . . . [P]laintiff’s wilful disregard of the Federal Rules, and her lack of communication and cooperation with defense counsel in regard to all discovery, undermine the judicial process plaintiff herself has invoked.”);
Marion v. State Farm Fire and Casualty Co., 2008 WL 723976, at *3-4 (S.D. Miss. Mar. 17, 2008) (“[T]he gravest ‘error’ committed by the Magistrate [Judge] was thinking that ‘the parties [could] meet and confer to discuss any outstanding discovery requests,’ because after this ‘meet and confer’ it was ‘clear that the parties had done little to resolve their perceived differences on document production.’. . . This Court demands the mutual cooperation of the parties. It hopes that some agreement can be reached . . . . Neither [the Magistrate Judge] nor this Court will hesitate to impose sanctions on any one–party or counsel or both–who engages in any conduct that causes unnecessary delay or needless increase in the costs of litigation.” (citing Fed. R. Civ. P. 26(g));
Malot v. Dorado Beach Cottages Assocs., 478 F. 3d 40, 45 (1st Cir. 2007) (sustaining certain sanctions imposed by district court for discovery violations and noting with disapproval the lack of cooperation and responsiveness of defendants to plaintiff’s attempts to comply with the discovery schedule);
In re Spoonemore, 370 B.R. 833, 844 (Bkrtcy. D. Kan. 2007) (“Discovery should not be a sporting contest or a test of wills, particularly in a bankruptcy case where the parties’ resources are limited and the dollar value of the stakes is often low. When a party and its counsel are as intransigent and uncooperative in discovery as [the parties] have been in this matter, the Court has no choice but to impose sanctions that, hopefully, emphasize that the conduct sanctioned is both unprofessional and unacceptable.”);
Sweat v. Peabody Coal Co., 94 F.3d 301, 306 (7th Cir. 1996) (“This Court cannot determine where the fault in this latest breakdown of attempted discovery lies. The Court is therefore assuming that both attorneys have failed in this regard. This Court is not happy with the progress, or should say lack of progress, relating to getting this case ready for trial. It is apparent that the attorneys involved in this case do not like each other, do not get along, and will not cooperate in the discovery process. The people who suffer when this happens are the parties.”)
Mayflower is the first of what I hope will be many opinions of judges around the country supporting the Sedona Cooperation Proclamation. Our system of justice can no longer afford to continue to play with the pursuit of truth in civil discovery as if it were a game of hide and seek. The discovery aspects of litigation should be removed entirely from the adversarial game model. It is not only required by the rules and the code of ethics, but in the realm of electronic discovery at least, the alternative is extreme costs that could bankrupt any company.
Lawyers need to better understand the processes to realize how it is in their clients’ best interests to cooperate on discovery, especially expensive e-discovery. We should save the contentious arguments for interpretation of the facts, what the law is, and how the law applies to these facts. Take the hand you are dealt and make the most of it.
Judges need to get with the program too. They not only need to encourage cooperation, but punish violation of the rules. For a start, they should routinely impose sanctions for violations of Rule 26(g) as the rule intended. (The rule says “must” impose sanctions, not “may.”) For twenty five years, they have not done so, such that now Judge Grimm calls it the most commonly violated of all discovery rules. The rule has not been followed because it has not been enforced. Lawyers listen primarily to what judges do, not what they say. The ruling is what counts, the rest is just “yada yada.”
This means we need a much more active judiciary than we have had in the past. It is not enough to simply tell lawyers to go away and work things out by yourself. This has been tried now for decades and has not worked, to the point that many are ready to leave the civil system entirely and embrace alternative dispute resolution.
The over-zealous advocates continue to take advantage of the lax judicial attitude. When out of sight of the judges, they push the edge as far as they dare, which is pretty far when they know that even intentional rule violations seldom result in hard cash sanctions. If called to task, they obfuscate, come up with a million excuses, blame the other guy, and sometimes just plain lie. Take a hard look at Qualcomm v. Broadcom for one very public example. These kind of lawyers make it difficult for judges to figure out the truth, and so all too often, nothing happens, and they get away with it. All this does is encourage more bad behavior. Judges need to take the time to figure it out. Discovery is important and needs an active bench to function properly. If judges do not enforce the rules and punish violations with sanctions, a large number of attorneys will see this as a green light for business as usual. We can no longer afford that.