The Signature as Certification

Discovery Certification and Sanctions

The Signature as Certification

Rule 26(g)(1) turns a clerical act into a representation. 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 the party is unrepresented. The signer must also state an address, email address, and telephone number.¹ By signing, the attorney or party certifies that, to the best of the signer's knowledge, information, and belief formed after a reasonable inquiry, the paper meets the standards listed in the rest of Rule 26(g)(1).² The signer therefore vouches for the paper itself. The sections that follow take up what the signer vouches for and how much investigation must stand behind it.

The signature requirement reaches beyond the disclosures that Rule 26(g)(1) names. Rule 26(a) separately requires all of its disclosures to be in writing, signed, and served, unless the court orders otherwise.³ Interrogatories show how two signatures divide the work. The party answers in writing under oath and signs the answers, and the lawyer makes any objections. The lawyer must also sign the response under Rule 26(g), certifying that a reasonable inquiry preceded it, and the same is true of discovery requests. In practice, the party's lawyer usually prepares the answers.⁴

The certification binds the lawyer who serves a request as firmly as the lawyer who answers one. One court described Rule 26(g) as a deterrent to both excessive discovery and evasion, because it obliges each attorney "to stop and think about the legitimacy of a discovery request, a response thereto, or an objection." That court added that "response" covers answers to interrogatories and to requests to admit as well as responses to production requests.⁵ The evasion side is illustrated by a dispute in which Mazda objected "on almost every imaginable ground," many objections being "clearly boilerplate and bordered on the frivolous." Mazda then withheld a substantial amount of information that it later conceded was properly discoverable. That conduct seemingly violated its certification that the objections had a basis in law and were not unreasonable.⁶ Plausible, legitimate objections remain part of zealous advocacy, but a frivolous resistance cannot be called a reasonably diligent effort to comply.⁷

Rule 26(g) is discovery's analog to Rule 11, but it demands more than Rule 11 does.⁸ Like a Rule 11 certification, it warrants that the paper rests on law and serves a proper purpose. It also warrants that a disclosure is complete and correct as of the time it is made, and that a request, response, or objection is neither unreasonable nor unduly burdensome or expensive, which echoes the proportionality standard of Rule 26(b)(1). Rule 26(g) therefore protects the integrity of the discovery process itself, and the advisory committee notes speak of a "duty to engage in pretrial discovery in a responsible manner."⁹ Enacted in 1983, the rule is among the most important and least followed of the discovery rules.¹⁰ Its purpose is to make lawyers weigh the legitimacy of each request and response before it goes out, and sanctions, including attorney's fees, back that purpose.¹¹ The pause is not meant to discourage or restrict necessary and legitimate discovery. The rule asks only for a reasonable inquiry into the factual basis of the request, response, or objection.¹²

An unsigned paper carries no certification, and the rule treats it accordingly. Other parties have no duty to act on an unsigned disclosure, request, response, or objection until it is signed. The court must strike it unless a signature is promptly supplied after the omission is called to the attorney's or party's attention.¹³ If an unsigned paper still bound its recipient, a lawyer could serve a demand or a boilerplate refusal and avoid the certification that normally comes with it. Making the paper inoperative until signed closes that route. The allowance for a prompt signature spares the lawyer whose only lapse was forgetting to sign, and the striking is mandatory when no signature arrives.

On an exam, a stem that describes a served paper with no signature block asks two questions. Has anything been certified, and must the recipient do anything?

A caution about numbering will prevent confusion when you read older decisions. The opinion quoted above, for example, sets out the certification as Rule 26(g)(2) and describes the legal-basis requirement as a "good faith argument."¹⁴ Today the certification sits in Rule 26(g)(1) and asks for consistency with the rules and a basis in existing law or a nonfrivolous argument for changing it.¹⁵ The unsigned-paper rule is Rule 26(g)(2), and the sanction for an improper certification, imposed on the signer, the party, or both, is Rule 26(g)(3).¹⁶ Use the current numbering in your own analysis, and read a quotation from an older opinion as an earlier statement of the same duty.