eDiscovery Issue: Counsel Sanctioned for Wrongful Certification under Rule 26(G)

The court sanctioned Branhaven and its counsel for improper eDiscovery practices. First, Branhaven’s counsel signed responses to requests for production containing the common boilerplate language that Branhaven “will make the responsive documents available for inspection and copying at a mutually convenient time.” The problem? When she signed those responses, Branhaven’s counsel had done nothing more than forward the requests to her client. She did not find out whether any responsive documents existed, much less locate them and prepare to produce them as the response suggested. Accordingly, the court found Branhaven’s counsel had not made the “reasonable inquiry” required by the Federal Rules of Civil Procedure and in fact had provided a “meaningless and arguably misleading response” in an effort “to buy time and technically comply with Rule 34.”

Second, after providing only 388 pages of documents in five months, Branhaven dumped over 100,000 pages of documents on the defendants just a few days before Branhaven’s 30(b)(6) deposition. Moreover, Branhaven produced these documents in PDF rather than TIFF format and did not Bates-number all of the pages. Although the court found that the production was (barely) timely under the scheduling order, the volume, the timing of production, the format, and the lack of complete Bates -numbering rendered the production not “in a reasonably usable form,” as required by Rule 34.

The defendants had sought to have Branhaven’s documents excluded, but the court was unwilling to go that far. Instead, the court assessed Branhaven and its counsel—jointly and severally—costs the defendants incurred to convert the production to a useable format as well as the defendants’ attorneys’ fees associated with bringing the motion for sanctions.

A couple of lessons stand out from Branhaven’s sanctions. Do not delay a diligent search for responsive documents, and certainly do not represent that you’ve done such a search if you haven’t.

Two, work cordially with your opponents to come to agree on productiondetails. If Branhaven had produced the documents in an agreeable format—even at the last minute—it likely would have escaped sanctions.