July 31, 2019 Practice Points

Beware the Boilerplate: Reasonable Inquiry is Required for Discovery Responses and Objections

Rule 26(g)(3)’s mandatory sanctions may prove to be a wildcard.

By Kaitlyn B. Samuelson

Every attorney is familiar with the representations they make under Federal Rule of Civil Procedure 11(b) when signing pleadings, motions, or other papers—or at least they should be. But how many attorneys are familiar with the representations they make when signing discovery papers under Federal Rules of Civil Procedure 26 through 37? Under Rule 26(g), an attorney certifies that, after a reasonable inquiry (1) a disclosure is complete and accurate when made; (2) a request is consistent with the rules or a non-frivolous argument for extending, modifying, reversing, or creating law; (3) a request is not interposed for an improper purpose; and (4) a request is neither unreasonable nor unduly burdensome or expensive according to four specific factors.

If a court finds that an attorney failed to follow to Rule 26(g) without substantial justification, it must impose sanctions. However, the court has discretion to decide the nature of the sanctions. Two recent decisions function as cautionary tales of what not to do and illustrate the courts’ ability to impose a spectrum of sanctions.

In Jianjun Chen v. 2425 Broadway Chao Rest. LLC, No. 1:16-CV-5735-GHW, 2019 WL 2250336, (S.D.N.Y. May 24, 2019), the U.S. District Court for the Southern District of New York considered a motion for 26(g) sanctions. The defendant’s motion argued inter alia that the plaintiffs’ post-deposition responses were inaccurate, given certain plaintiffs’ deposition testimony. During depositions, multiple plaintiffs admitted that they had been paid for all hours worked. However, in response to certain requests to admit, plaintiff’s counsel signed off on a response that “Plaintiffs deny that they were paid for all hours worked.” Because counsel for the plaintiffs was “clearly aware of the testimony [his] own clients gave” yet the post-deposition responses contained “patent and objectively unreasonable inaccuracies,” the court found sanctions to be required. Most notably, because counsel was the named partner of his law firm and responsible for the supervision of office staff, the court found “the culpability for the discovery violations at issue [fell] squarely on [his] shoulders[.]” The court imposed sanctions on the attorney personally to serve “the interests of personal and general deterrence[.]” The prevailing defendants were awarded 100 percent of their reasonable costs and fees associated with the motion for sanctions.

In contrast, in Lopez v. Don Herring Ltd., 327 F.R.D. 567 (N.D. Tex. 2018), the plaintiff’s response to the defendant’s combined discovery requests began with a preliminary list of general objections. The plaintiff then repeated the same objection—“Plaintiff further objects to this request as overly broad, unduly burdensome, vague, ambiguous, and not reasonably calculated to lead to the discovery of admissible evidence”—34 more times. Plaintiff’s counsel failed to specify the exact objection and provided little other justification for why he was withholding responsive documents. Unsurprisingly, the defendant filed a subsequent motion to compel. The plaintiff responded by arguing the defendant had itself violated Rule 26 and pointed out that its responses to plaintiff’s discovery requests employed identical, repetitive general objections.

In considering the motion to compel, the U.S. District Court for the Northern District of Texas went to great lengths to detail discovery obligations under Rule 26. The court explained that, while Rule 26(g)(3) sanctions are mandatory against a party who violates the rule without substantial justification, the court maintains discretion to decide the nature of the sanctions imposed based upon the circumstances. Two wrongs don’t make a right, but because the defendant’s responses also asserted improper boilerplate objections, the court made the parties bear all of their own expenses, attorney fees, and costs in connection with the motion to compel. Nevertheless, the court ordered the plaintiff to file complete responses without objection and generally admonished that the parties must cease-and-desist from future use of such general objections.

Lopez and Chen remind practitioners that, while it may be easier to generally deny or generally object, mandatory sanctions under Rule 26(g) offer roulette-style outcomes; best practice commands that attorneys don’t take the risk.

Kaitlyn B. Samuelson is a summer clerk in the Charleston, West Virginia, office of Spilman Thomas & Battle, PLLC. She is a 3L at the West Virginia University College of Law.

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