Rule 26(g) of the Federal Rules of Civil Procedure (often called the Rule 11 of discovery) governs an attorney’s signature on discovery responses. A judge must impose sanctions if Rule 26(g) is violated. In spite of the rule’s requirement, we have not seen a sanction imposed under this rule…until now. U.S. Magistrate Judge Susan Gauvey has rendered an opinion actually enforcing Rule 26(g) in Branhaven LLC v. Beeftek, Inc., _F.R.D._, 2013 WL 388429 (D. Md. Jan. 4, 2013). This opinion is good ammunition for attorneys seeking to curb discovery abuses.
Rule 26(g)(3) provides for mandatory sanctions for violation of Rule 26(g). The Rule is violated every time an attorney signs a form discovery response with little or no thought as to its accuracy, completeness, and intelligibility, much less the reasonable efforts required by the rules. There is no discretion afforded to the judge on whether to impose sanctions if the rule is violated. That is highly unusual where sanctions are concerned. There is not even a requirement of bad faith or intent, as there typically is for sanctions. Sanctions must be imposed upon proof of violation without substantial justification.
In 2008, Judge Paul Grimm, an influential member of the Federal Rules Committee, brought Rule 26(g) to the attention of lawyers in his seminal opinion on discovery cooperation, Mancia v. Mayflower Textile Services Co. He called 26(g) the most underutilized and misunderstood rule in the book. Judge Grimm was right. Before Mancia few attorneys focused on Rule 26(g) and its mandatory sanctions provision in (3) of the rule, 26(g)(3).
Mancia pointed this out in 2008, but Branhaven is the first opinion actually enforcing 26(g). This is a well-reasoned opinion, filled with good quotes, many of which are highlighted in the linked opinion. It should be kept at hand when opposing a counsel who unnecessary increase the costs and burden of e-discovery.
In Branhaven, Plaintiff’s counsel just signed the response to the defendant’s request for production and delegated all of the work to the client. The client evidently did a poor job, to put it mildly, and the plaintiff’s counsel made a “large, disorganized and last minute document production.” This prompted Judge Gauvey to hold:
[P]laintiff’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.
The Plaintiff and Plaintiff’s attorneys were sanctioned and ordered to pay the costs and fees incurred by defense counsel. We think Branhaven is an important opinion to use in curbing discovery abuses. In this blog, we look forward to bringing more cases like this one to your attention.