The Reasonable Inquiry Standard

Every certification that Rule 26(g)(1) attaches to a disclosure, request, response, or objection depends on one qualifier: the signer certifies “to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry.”¹ That phrase fixes how much investigation must precede the signature. Without it, a lawyer could sign after a glance, certify everything the rule lists, and then insist that no one can prove the lawyer knew better. The stakes are real, because a certification that violates the rule without substantial justification draws a sanction the court must impose.²

The standard has to work around a division of knowledge. The client holds the documents and the facts; the lawyer knows what the discovery rules demand and what makes material responsive; neither can complete the certification alone. A test built on the signer’s private belief would let willful blindness pass for good faith, since a lawyer who avoided looking could claim to have believed whatever the client said. A test applied with hindsight would punish a lawyer who investigated sensibly whenever a document surfaced later. The rule avoids both problems by measuring the inquiry objectively and as of the moment of signing. The first subsection below explains that test, and the second shows how far counsel may lean on the client within it.

Objective Standard at Signing

Reasonableness could be measured by what the signer sincerely believed or by what a careful lawyer would have done, and the drafters chose the second measure. The advisory committee note to the 1983 amendment, as courts quote it, says that 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,” and it calls the duty “an objective standard similar to the one imposed by Rule 11.”³ Courts sanction on that footing. In Liguria Foods, Inc. v. Griffith Laboratories, Inc., the court explained that the standard for imposing Rule 26(g) sanctions is objective and that it tests the signer’s certification for reasonableness.⁴

Under an objective test the court asks what a reasonable lawyer in the signer’s position would have investigated and concluded, and the signer’s sincere belief does not answer that question. The test works because it directs the court to facts it can see: who was asked, which files were searched, which obvious sources were left alone. A private-belief test would instead demand proof of a mental state that only the signer can describe. Nor does a sanction require bad faith; the cases say so even for the improper-purpose certification, where the signer’s motive matters most.⁵

The court measures the inquiry as of the moment of signing. The certification is tested at the time the discovery paper is signed, the court must strive to avoid the wisdom of hindsight, and all doubts are resolved in favor of the signer.⁶ A lawyer can act only on what is known that day, so a document that surfaces later shows that the paper was wrong without showing that the inquiry behind it was unreasonable. Punishing outcomes would also push lawyers to hedge every response until it said nothing. The committee guarded against that result: the certification duty requires the lawyer to pause and consider, but it “is not meant to discourage or restrict necessary and legitimate discovery,” and it asks only for a reasonable inquiry into the factual basis of the paper.⁷

Qualcomm Inc. v. Broadcom Corp. shows how an inquiry can be flawed and still reasonable. Qualcomm’s document collection and production proved inadequate, and the court said that the attorney Leung “certainly could and should have conducted a more thorough effort to collect and produce relevant discovery.” Because he took appropriate actions to learn the truth and was misled by Qualcomm employees, however, the court declined to sanction him under the Federal Rules.⁸ The standard asks for a reasonable inquiry and does not ask for a perfect one, and what the lawyer did before signing decides the question, whatever the later record shows. That result also fits the sanction provision, which makes a sanction mandatory only when a certification violates the rule without substantial justification.⁹

The opposite case is the lawyer who never asks. A signer who certifies a complete production while skipping the obvious sources has no inquiry to defend, and the next subsection collects the decisions that find that failure.

The objective test has one exception, and it explains why motive appears in some Rule 26(g) disputes at all. A court may inquire into the signer’s actual knowledge and motivation to decide whether a request, response, or objection was interposed for an improper purpose.¹⁰ The rule defines that certification by the signer’s aim: a paper must not be interposed to harass, cause unnecessary delay, or needlessly increase the cost of litigation, and a court cannot identify an aim without asking what the signer was pursuing.¹¹ Even there, outward behavior that manifests an improper purpose may be considered, so a court can find purpose in what the signer did.¹² The other certifications stay objective. Whether a paper is consistent with the rules and warranted by existing law or a nonfrivolous argument, and whether it is unreasonable or unduly burdensome given the needs of the case, are questions about the paper and its circumstances, and the signer’s state of mind does not change the answer.¹³

Because the test looks only at what was known at signing, each new signing stands on its own. Every signing of a new discovery request, response, or objection is evaluated in light of the totality of the circumstances known at that time, so the practical import of the rule is that counsel must stay vigilant throughout the proceeding.¹⁴ Hindsight is barred when judging an earlier paper, but what counsel learns after one signing becomes part of the circumstances against which the next is measured. The Qualcomm record shows the point from the failing direction. When twenty-one emails turned up on an employee’s computer during trial, none of the attorneys considered that the find proved the company’s collection and production had been inadequate, and none reviewed the discovery production log to see how far the search had gone.¹⁵

Hypothetical Illustration

In March, defense counsel answers a document request after interviewing the company’s records custodian and searching the shared drive and the email archive, and signs a response stating that production is complete. In June, a former manager testifies at a deposition that an important set of files sits on a departed employee’s laptop. In July, counsel signs a supplemental response repeating that production is complete, without asking to see the laptop.

The March response is tested only against what counsel knew in March, and the later appearance of the laptop does not make that inquiry unreasonable. The July response is a new signing, tested against what counsel knew in July, including the deposition testimony. A certification of completeness made without checking the obvious new lead cannot show a reasonable inquiry.

Relying on the Client

The documents and facts that a reasonable inquiry must reach almost always sit with the client and not with the lawyer who signs.¹⁷ The court in Kinetic Concepts, Inc. v. Convatec, Inc. described what the signature means in that setting: by signing, an attorney “certifies that [he or she] has made a reasonable effort to assure that the client has provided all the information and documents available to [the client] that are responsive to the discovery demand.”¹⁸ The certification therefore describes the lawyer’s own effort, and what the client reports is the raw material for that effort.

Counsel may rely on the client’s assertions, but only when “the investigation undertaken by the attorney and the conclusions drawn therefrom are reasonable under the circumstances.”¹⁹ Reliance is a conclusion that an inquiry supports, and it cannot stand in for the inquiry. Each side of the relationship knows something the other does not: the client holds the records and knows who wrote what and where it was saved, while counsel cannot search every file but does know what the discovery rules demand and can see whether a given search is adequate. If the client’s assurance were enough, a lawyer could certify completeness without ever checking whether anything was missing, and the signature would vouch for nothing. The duty to verify falls on counsel because counsel is the participant who knows what the rules require.

Exam Analysis Steps

Courts give “reasonable inquiry” practical content by describing what counsel and client must do once litigation is underway. Their lists work as a checklist for judging whether reliance on the client was reasonable:²⁰

Once litigation begins or is reasonably anticipated, suspend the client’s routine document retention and destruction policy and put a litigation hold in place to preserve relevant documents.
Become fully aware of the client’s document retention policies and data retention architecture, so that counsel knows where responsive material could be located.
Communicate with the key players in the case to learn how each of them stored information.
Take reasonable steps to monitor compliance with the hold, so that all sources of discoverable information are identified and searched.

A 2003 decision that the court in Cache La Poudre cited supplies the mirror image of that checklist. It found a Rule 26(g) violation where defense counsel never adequately instructed the client about its overall discovery obligations, failed to inquire about the client’s document storage procedures and capabilities, put no systematic procedure in place for document production or retention, and failed to ask important witnesses for documents.²¹ Each omission marks a place where the lawyer accepted the client’s account without testing it.

The litigation hold draws the most misplaced confidence, because it is the one step that is easy to see and easy to document. In Cache La Poudre Feeds LLC v. Land O’Lakes, Inc., the company kept wiping clean the hard drives of former employees without validating the accuracy and completeness of its discovery production. The court found it difficult to understand how the defendants’ retained counsel could legitimately claim that the company had “made every effort to produce all documentation and provide all relevant information” without some showing of reasonable inquiry.²²

A hold cannot carry the weight placed on it, because it tells employees what to keep and does not tell counsel whether they found everything, whom no one contacted, or whether deletion continues elsewhere. The court called a hold an important first step, but one that “without more, will not suffice to satisfy the ‘reasonable inquiry’ requirement.” Counsel keeps an ongoing responsibility to take appropriate measures to ensure that the client has provided all available information and documents responsive to the requests.²³ That responsibility lasts as long as the case, because the obligation to conduct a reasonable search continues throughout the litigation and the rules separately require a party to amend a response it learns is incomplete or incorrect.²⁴

Hypothetical Illustration

Outside counsel for a defendant company begins the document response by explaining to the company’s legal staff what the requests cover. Counsel then asks the information technology director how email, shared drives, and departing employees’ laptops are stored and when each is wiped, interviews the three managers most closely tied to the project, and arranges for the wiping of former employees’ drives to stop. When one manager mentions a colleague who kept project files at home, counsel asks that colleague to search before anything is signed.

The signed response certifying completeness rests on an inquiry a reasonable lawyer could defend. If a stray file surfaces months later, the response remains protected, because counsel verified before relying on the client.

Verification also includes acting on what the inquiry turns up. In Qualcomm, numerous employees indicated that certain colleagues were the most likely to have been involved in the process at issue, yet neither in-house nor outside counsel ensured that those colleagues’ computers were searched. No one checked the standards group’s travel records to learn which employees attended the relevant meetings, and even when a reflector list bearing one employee’s email address was discovered, that employee’s personal computer and emails were not searched for similar documents.²⁵ The court described this follow-up as inadequate, and although it spared Leung because employees had misled him, its account shows what an unchased lead looks like. The lawyer in the hypothetical asked about the colleague who worked from home, whereas the Qualcomm lawyers never asked for the computer of the person the documents pointed to.

Two shortcuts feel like discharging the duty but fail for the same reason. The first is handing a damaging document to the lawyer. A request reaches materials in the responding party’s possession, custody, or control, and an agent such as a lawyer must follow the principal’s instructions about documents entrusted to it, so a paper given to counsel is still within the client’s control. The party’s signature on its response also certifies that it made a reasonable inquiry.²⁶

The second shortcut is leaving the search to employees. The signature certifies counsel’s inquiry and not the employees’ good intentions, so counsel cannot discharge the duty by asking business people to find and send whatever they think is responsive. In Wachtel v. Health Net Inc., the court found a company’s process for responding to discovery utterly inadequate in part because the company relied on specified business people to search for and produce whatever documents they thought were responsive, without verifying that the searches were sufficient.²⁷ An exam stem that stresses a hold notice, or has counsel sign whatever the client sends back, describes a certification that rests on assumption.