In Play Visions, Inc. v. Dollar Tree Stores, Inc.1, a recent decision out of the U.S. District Court for the Western District of Washington in Seattle, the court ordered Rule 26(g)(1) discovery sanctions against Play Visions' counsel for failing to make reasonable inquiry as to whether the client's discovery responses were adequate.
Play Visions' counsel committed a number of discovery blunders that led to sanctions, including turning over incomplete, inadequate and delayed document productions while certifying that productions were complete. Rule 26(g)(1) of the Federal Rules of Civil Procedure requires that discovery responses be signed by at least one attorney of record and that by signing the discovery response, counsel certifies that the information in the underlying response was formed after a reasonable inquiry.
The court's opinion lists the following examples of counsel's failure to make a reasonable inquiry:
- Counsel failed to familiarize himself with the client's document storage and retention systems
- Counsel did not take an active role in guiding the client in searching for records
- Counsel failed to make an independent inquiry into how documents were stored and how thoroughly they were searched for and produced
- Counsel had little to no involvement in the production of documents
- Counsel relied entirely on the client to provide discovery responses
This case highlights the need for outside counsel to work closely with the client and in-house counsel with regards to discovery. As emphasized in the often referenced Qualcomm2 case, "attorneys and clients must work together to ensure that both understand how andwhere electronic documents, records and emails are maintained."3 The court in Qualcomm added additional incentive for communications and coordination between counsel and client by stating that outside counsel is responsible for ensuring that clients conduct a comprehensive and appropriate document search.4
What constitutes a "reasonable inquiry" in the world of electronically stored information? According to the court in Play Visions, at least some level of involvement by outside counsel in the identification and production of documents is required. The court suggests that counsel (1) become familiar with the client's document retention and storage systems, (2) guide the client through searches and (3) make an independent inquiry about how documents are stored, searched and produced. In Qualcomm, the court stated that a reasonable inquiry for that case would include identifying employees who are knowledgeable of the facts at issue and searching these employees' computers through the use of fundamental search terms. Certainly, the answer as to what constitutes a reasonable inquiry depends on the facts of each case. However, counsel can take the following preliminary actions to help ensure reasonable inquiry:
- Identify the sources of responsive documents: Work closely with in-house counsel and the client's IT department to identify all sources of potentially responsive documents and the location of those sources. Counsel may also identify the retention policies governing each source of relevant information.
- Ensure document preservation: Although not an issue in Play Visions, document preservation is a critical element of reasonable inquiries. Counsel should work with in-house counsel to prepare a legal hold notice and circulate it to relevant employees and managers of document sources to ensure that key documents are not destroyed.
- Interview key employees: Counsel should interview key employees to assess how and where they store electronic and paper documents. Counsel may also use these interviews to identify additional employees with responsive information and confirm they understand and comply with the legal hold.
- Collect documents properly: After counsel has identified (and preserved) sources of relevant documents, work with the relevant employees and IT department personnel to collect documents in an efficient and defensible manner.
- Create a list of key search words: Work closely with the client to create a list of key words to help identify likely responsive documents (and cull out non-responsive documents) prior to any document review.
- Document processes followed: Create and maintain documentation regarding each of the processes described above. Documentation plays a critical role if discovery responses are ever challenged.
While not exhaustive, nor necessarily required for every case, the processes listed above will help create a solid foundation for representing to a court that a reasonable inquiry was made. This in turn may help avoid a Rule 26(g)(1) sanction.