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.