Good Faith in Discovery

Dissatisfaction with the discovery process has prompted generations of lawyers and judges to call for reform (often dramatic): limit the scope of discovery, require it to be proportional to what is at issue in the case, reduce the number of interrogatories and document requests, shorten the permissible number and length of depositions, reform designee depositions, shift costs from the producing party to the requesting party, encourage judges to more promptly and informally resolve disputes, etc. Yet, each of these suggestions has been adopted in revisions to the Federal Rules of Civil Procedure, evidently (from the enduring complaints) without much positive effect. So what’s to be done? Forswear litigation in favor of mergers and acquisitions?

Rule 26(g) Can Save Much Trouble

From the perspective of someone who has spent nearly 50 years thinking about discovery in civil cases, as an attorney, judge, and former member of the Civil Rules Advisory Committee (and chair of the Discovery Subcommittee), I am convinced that much of the unpleasantness that characterizes discovery can be avoided by following both the letter and spirit of a single rule of civil procedure—one that has been part of the rules since 1983, yet seems to have been forgotten or overlooked by lawyers and judges. That rule is Federal Rule of Civil Procedure 26(g), and it is designed to parallel the requirements of Federal Rule of Civil Procedure 11, which governs pleadings, motions, and other court filings. Both are designed to ensure that, from the moment litigation commences through all the steps that follow, it is conducted in good faith. Because without good-faith conduct by the litigants and lawyers, no amount of tinkering with the rules of procedure will achieve the reforms that lawyers perpetually demand.

It doesn’t help that this vital rule is buried in the bowels of Rule 26, likely the longest and most complex of the rules of civil procedure. Yet, in light of both its importance and relative obscurity, the rule deserves a careful look. Subsection (g) of Rule 26 is titled Signing Disclosures and Discovery Requests, Responses, and Objections, which signals its breadth—it covers all forms of discovery requests, responses, and objections. Subsection (1) focuses on the requirement that all discovery requests, responses, and objections bear the signature (which may be electronic) of the attorney of a represented party or of the party himself or herself, if not represented. Importantly, the rule explains the effect of this requirement:

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 the 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.

Fed. R. Civ. P. 26(g)(1).

There is a lot packed into in this part of the rule. First, the signature requirement is no mere formality; it is a certification that before propounding, answering, or objecting to a discovery request, the lawyer has made a reasonable inquiry, which eliminates “empty head, pure heart” excuses for failure to comply with the rule. And, in what sometimes comes as a shock to lawyers when they actually read the rule, the signature certifies that the discovery request, response, or objection was “consistent with these rules” and was not made for any improper purpose, which includes harassment, unnecessary delay, or needlessly increasing the cost of litigation. The requirement that the request, response, or objection be “consistent with these rules” refers to the rules of civil procedure, including Rule 1 (requiring the court, parties, and lawyers to “construe, administer, and employ” the rules of procedure to “secure the just, speedy, and inexpensive determination of every action and proceeding”) and Rule 26(b)(1) (which limits the scope of discovery to nonprivileged matters “relevant to any party’s claim or defenses and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit”).

And Rule 26(g)(1)(B) requires lawyers to tailor their discovery requests to the needs of the particular case, the amount in controversy, and the importance of the issues at stake in the litigation. Do you really need 25 interrogatories? Can you get what you need with 20, or even 15? What are the documents you really need to prove your claims or defenses? Who, in fact, must you depose, and for how long? How many subjects must you include in your Rule 30(b)(6) deposition notice, considering the discovery responses already received and persons already deposed? Are your objections to interrogatories and document requests stated with specificity (as required by Rule 33(b)(4) and 34(b)(2)(B)) or boilerplate? Are your actual answers to interrogatories and document requests dwarfed by pages and pages of general and specific objections that precede them? Are you producing requested documents “no later than the time for inspection specified in the request or another reasonable time specified in the response” (as Rule 34(b)(2)(B) requires), or are you vaguely promising to do so at some unspecified “mutually agreed upon time in the future”? Are your objections during a deposition concise, nonargumentative, and nonsuggestive (as required by Rule 30(c)(2))?

In a nutshell, Rule 26(g) aims to ensure that all aspects of discovery practice—from requests (be they interrogatories, document requests, requests for mental or physical examination, depositions, or requests for admissions) to responses (answers to interrogatories, document requests, and requests for admissions) to objections (whether to written discovery requests or deposition questions)—demonstrate good faith.

Moreover, like Rule 11, Rule 26(g) authorizes the imposition of sanctions against those who violate it:

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. This sanction may include an order to pay the reasonable expenses, including attorney’s fees, caused by the violation.

Fed. R. Civ. P. 26(g)(3).

Note that the court may impose sanctions upon a motion of a party or on its own initiative. The mandatory language in the sanctions requirements of Rule 26(g) was added because

[c]oncern about discovery abuse has led to widespread recognition that there is a need for more aggressive judicial control and supervision [of discovery]. Sanctions to deter discovery abuse would be more effective if they were diligently applied “not merely to penalize those who might be tempted to such conduct in the absence of such a deterrent.”

Fed. R. Civ. P. 26 advisory committee’s note to 1983 amendment (citation omitted) (quoting Nat’l Hockey League v. Metro. Hockey Club, 427 U.S. 639, 643 (1976) (per curiam)).

The advisory notes that accompanied Rule 26(g) when it was enacted in 1983 give further insight into its importance:

Rule 26(g) imposes an affirmative duty to engage in pretrial discovery in a responsible manner that is consistent with the spirit and purposes of Rules 26 through 37. In addition, Rule 26(g) is designed to curb discovery abuse by explicitly encouraging the imposition of sanctions. This 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. . . .

If primary responsibility for conducting discovery is to continue to rest with the litigants, they must be obliged to act responsibly and avoid abuse. With this in mind, Rule 26(g), which parallels . . . Rule 11, requires an attorney or unrepresented party to sign each discovery request, response, or objection.

The duty to make a “reasonable inquiry” is satisfied if the investigation undertaken by the attorney and the conclusions drawn therefrom are reasonable under the circumstances. It is an objective standard similar to the one imposed by Rule 11.

Id.

As I noted in one of my own opinions on this subject, Rule 26(g)

aspires to eliminate one of the most prevalent of all discovery abuses: kneejerk discovery requests served without consideration of cost or burden to the responding party. . . . Similarly, Rule 26(g) also was enacted . . . to bring an end to the equally abusive practice of objecting to discovery requests reflexively, but not reflectively—and without a factual basis.

Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 358 (D. Md. 2008) (Grimm, J.).

What We Must Do

The fact that lawyers and judges still are complaining about discovery abuse 36 years after Rule 26(g) was added to the rules of civil procedure suggests that it would be an understatement to say that it has not yet lived up to the hopes of its drafters on the Civil Rules Advisory Committee. Part of the problem undoubtedly lies with its location deep within Rule 26, obscuring its importance. And many lawyers are responsible for perpetuating in their own cases the very abuses that they complain about in others. But judges also deserve part of the blame, particularly those who will not engage with the lawyers throughout the pretrial process by making themselves available when discovery problems emerge and resolving disputes (as Rule 16(b)(3)(B)(v) now encourages them to do) promptly and informally during a conference with the court. Law schools, too, share some of the blame, for not spending sufficient time teaching students about discovery obligations in civil procedure classes. And clients can be a part of the problem when they demand or encourage their lawyers to use discovery as a weapon against an adversary, instead of as a carefully tailored process of getting the essential information needed to resolve a case through trial, settlement, or a dispositive motion. Indeed, Rule 1 now states that the rules of civil procedure “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1 (emphasis added).

If Rule 26(g) ever is to live up to its expectations, it must become internalized by all who participate in pretrial discovery. Regardless of its obscurity, at bottom it stands for a simple principle, one that anyone familiar with the dictates of Rule 11 already should well understand. In discovery, as in bringing and defending lawsuits, the parties and lawyers have an obligation to conduct themselves in good faith. And when judges take up their responsibility to be available to ensure that parties abide by the rule (and, when appropriate, sanction those who fail to do so), then those who are unfamiliar with it or who choose to disregard it will soon learn that they will not profit from their ignorance or noncompliance, and they will be deterred from future violations. Perhaps then, when lawyers and judges grouse about the vexations of civil litigation, they will speak of another recurrent problem—the infrequency of civil jury trials. But that is a subject for another day.

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