What Counsel Certifies

Rule 26(g)(1) attaches a certification to every signature, and the certification depends on what the lawyer signs. Each Rule 26(a)(1) or (a)(3) disclosure, and each discovery request, response, or objection, must be signed by an attorney of record, or by the party if unrepresented. By signing, the signer certifies that the paper meets the rule's standards to the best of the signer's knowledge, information, and belief formed after a reasonable inquiry.¹ For a disclosure, the standard is that it is complete and correct as of the time it is made.² For a request, response, or objection, the signer certifies three separate things. The paper is consistent with the discovery rules and warranted by existing law or by a nonfrivolous argument for changing it. It is not interposed for an improper purpose such as harassment, delay, or needless cost. And it is neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery, the amount in controversy, and the importance of the issues.³ The reasonable inquiry discussed above underlies every one of these certifications, and this unit asks what each one adds to it.

The split follows from what each kind of paper does in the case. A disclosure is a party's own statement of what it knows and expects to use, and the other side plans its discovery around it, so fullness and accuracy at the moment of disclosure are the properties that matter. A request, a response, and an objection are moves in a contest: the request demands, the response yields or resists, and the objection refuses. The words complete and correct fit a statement of information well and a demand or a refusal poorly. For these papers the rule therefore asks whether the move has a legal footing, an honest purpose, and a burden the case can justify. One signature thus tests two different things, depending on whether the paper reports information or advances a position.

The sorting matters on an exam because the completeness warranty attaches only to disclosures. An interrogatory answer or a response to a request for production is a response, judged under the three-part certification, and a request is judged under that same certification from the requesting side, so any of the three prongs can reach either party. The division also marks where Rule 26(g) departs from Rule 11. The legal-basis and purpose certifications resemble Rule 11's concerns. The completeness warranty for disclosures and the limit on unreasonable burden are Rule 26(g)'s own, the burden limit echoing the proportionality standard of Rule 26(b)(1), and the advisory committee notes describe the rule's concern as a “duty to engage in pretrial discovery in a responsible manner.”⁴ The subsections below take the certifications in the order the rule states them, beginning with the one that governs disclosures.

Complete and Correct Disclosures

By signing a disclosure, counsel certifies that, after a reasonable inquiry, it is complete and correct as of the time it is made.⁵ Rule 26(g)(1)(A) confines that warranty to disclosures, a term of art. It covers the initial disclosures under Rule 26(a)(1) and the pretrial disclosures under Rule 26(a)(3) that the opening sentence of Rule 26(g)(1) lists.⁶ Da Silva Moore v. Publicis Groupe describes the term as referring to the mandatory initial disclosures that Rule 26(a)(1) requires.⁷ An interrogatory answer or a response to a document request is a response, and a different paragraph governs it. That distinction settles the last question in this section.

The completeness requirement follows from what an initial disclosure is. It lists the witnesses and exhibits that the disclosing party may use to support its claims or defenses, and a party that fails to provide that information faces virtually automatic preclusion under Rule 37(c)(1), which means the party loses the use of what it left off.⁸ Because preclusion is so nearly automatic, the court found it appropriate for Rule 26(g)(1)(A) to require that disclosures be complete and correct.⁹ The opponent plans its discovery around the list, so an omission misleads it about where to look, and the omitting party pays by losing the evidence. Making the lawyer stand behind the list at the moment of signing puts the check where an omission is cheapest to repair. The two words in the certification also do separate work: complete asks what was left out, and correct asks what was put in wrongly.

Rule 26(a)(1)(E) sets how much inquiry stands behind a disclosure. A party must make its initial disclosures based on the information then reasonably available to it, and it is not excused because it has not fully investigated the case, because it challenges the sufficiency of another party's disclosures, or because another party has not made its own.¹⁰ That text fixes the meaning of complete. Completeness is measured against what a reasonable inquiry would turn up. The lawyer need not know everything that might exist, but cannot treat an unfinished investigation as a reason to omit what is already within reach. In practice the inquiry means asking the client who knows about the events and what documents the client holds, reviewing the file in hand, and listing what that effort reveals.

The phrase as of the time it is made turns the certification into a snapshot. A lawyer can certify only what a reasonable inquiry reveals on the day of signing, so a disclosure that was complete and correct on that day does not become a false certification because the case later produces another witness or document. Later developments reach the party through a different channel. A party that has made a Rule 26(a) disclosure, or has responded to an interrogatory, request for production, or request for admission, must supplement or correct its disclosure or response.¹¹ The two provisions divide the work by time. Rule 26(g)(1)(A) looks back at a single moment and asks whether counsel's inquiry then was adequate, while Rule 26(e)(1) looks forward across the life of the case and keeps the disclosure current. Without that division, every later discovery would expose counsel to retroactive sanction for something nobody could have known, or else the signature would have to certify a future no lawyer can predict.

What separates this lawyer from the one who skipped the coworker is when the information reached counsel. The coworker was known on the signing day, while the neighbor surfaced only afterward. Supplementation handles new information, but it cannot turn an inadequate inquiry at signing into an adequate one.

The last point corrects a frequent misreading. Because paragraph (A) speaks only of disclosures, it does not require a lawyer to certify that a response to a document request is complete, and the plaintiffs in Da Silva Moore argued otherwise without success. The court observed that in a large-data case, there involving over three million emails, no lawyer using any search method could honestly certify a production as “complete.” More importantly, it held that Rule 26(g)(1) does not require such a certification, because the plaintiffs had misread a paragraph that applies only “with respect to a disclosure.”¹²

The paragraph that governs discovery responses is (B). It does not call for certifying that a response is complete. It incorporates the proportionality principle of Rule 26(b)(2)(C), so the question is whether the response is consistent with the rules, properly motivated, and neither unreasonable nor unduly burdensome in light of the needs of the case, and paragraph (A) plays no role in a party's duty to answer discovery requests.¹³ The line follows the nature of each paper. An initial disclosure is a bounded list of what a party itself expects to use, so completeness is a question that can be answered. A response to a document request asks the responding party to search a collection that may hold millions of items, and the scope of that search is limited by proportionality rather than by perfect recall. A completeness warranty there would be a promise no one could keep, so every signer would have to decline to sign or sign something untrue.

Reading paragraph (A) narrowly does not make a careless search safe. The signer of a document response still certifies a reasonable inquiry, and the response is still measured under (B). An answer that sanctions a lawyer under Rule 26(g)(1)(A) because a document production proved incomplete has therefore chosen the wrong paragraph, since that analysis belongs under (B) and the reasonable-inquiry standard.

Consistent With Rules and Law

Rule 26(g)(1)(B)(i) supplies the first of the three certifications that attach to a discovery request, response, or objection. By signing, the lawyer or unrepresented party certifies, after a reasonable inquiry, that the paper is consistent with the discovery rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law.¹⁵ The clause tests two things. The first half measures the paper against the discovery rules' own commands, so a paper that breaks one of them fails. The second half asks whether the paper has a legal footing, either in the law as it stands or in a good-faith argument that the law should change. Both halves must hold, and the most familiar offender, the boilerplate objection, tends to fail both together.

The first half turns procedural requirements into certified facts. One opinion shows how. The judge noted that the defendants' failure to particularize their objections to the plaintiffs' discovery requests suggested a probable violation of Rule 26(g)(1), a failure to conduct a reasonable inquiry before objecting, and scheduled an in-court hearing with counsel to address the apparent violations.¹⁶ An objection helps the other side only if it says what is being resisted and why. A requesting party handed an unexplained objection cannot tell whether anything is being withheld, and the only way to find out is a motion to compel. The certification adds a second consequence. The signer certified that the objection was consistent with the rules, so an objection that offers no particulars was an inaccurate certification when signed, and it exposes the signer to a sanction under Rule 26(g)(3).¹⁷ The first half binds the party who serves a request just as it binds the party who answers.

The boilerplate objection shows both halves failing at once. Mancia v. Mayflower Textile Servs. Co. explained that Rule 26(g) was enacted to end the practice of objecting to discovery requests reflexively, but not reflectively, and without a factual basis. An objection may not be made, the court said, until the lawyer has “paused and consider[ed]” whether a reasonable inquiry reveals a “factual basis” for it. Yet stock objections that a request is “overboard and unduly burdensome, and not reasonably calculated to lead to the discovery of material admissible in evidence” persist, despite many decisions holding them improper unless based on particularized facts.¹⁸ The same habit appears when a set of interrogatory answers opens with a block of general objections that every answer is made subject to.¹⁹ Such objections fail for a reason deeper than form. Overbreadth and burden are fact-dependent standards, so calling a particular request overbroad is a conclusion about that request. An objection that offers the conclusion with no facts gives the law nothing to warrant, and words that could be pasted unchanged into any case say nothing about the request in front of the lawyer.

The words “unduly burdensome” appear in both this objection and the Mancia boilerplate, and the facts behind them separate a certified objection from a violation.

The second half of the clause asks for a legal footing. The signing requirement means that every discovery request, response, or objection should be grounded on a theory that is reasonable under the precedents or a good-faith belief as to what the law should be, a formulation Kinetic Concepts, Inc. v. Convatec, Inc. quotes in describing counsel's duties.²⁰ A lawyer therefore may not object on a theory the controlling precedents do not support, such as invoking a privilege the governing cases reject, while saying nothing about them. The rule's second alternative protects advocacy. If the certification demanded that every position already be settled law, a lawyer with a good-faith reason to think a precedent wrongly decided would face sanction for the very act that lets law develop. The nonfrivolous-argument language removes that risk. A responding party who objects on a ground that circuit precedent has rejected, tells the court the precedent is adverse, and explains why it should be narrowed has certified properly. One who objects on the same ground as though no contrary authority existed has not.

Students often merge the three certifications in Rule 26(g)(1)(B) into one. Clause (i) asks whether the paper complies with the rules and has legal support, clause (ii) asks about purpose, and clause (iii) asks about burden and proportionality. A boilerplate objection may implicate all three, but the clause (i) analysis looks at particularity and legal basis and applies the objective reasonable-inquiry standard discussed earlier, so the signer's sincerity does not answer it.

No Improper Purpose

Rule 26(g)(1)(B)(ii) supplies the second of the three certifications. By signing, the lawyer or unrepresented party certifies, after a reasonable inquiry, that the paper is “not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.”²² To interpose a paper is to place it in the path of the case, so the clause asks what the paper is for. The clause before it measured a paper against the rules and the law, while this one measures it against the use the signer means to make of it. A request or objection that looks flawless on its face can still fail if its function is to wear the other side down. Harassment, delay, and needless cost are examples introduced by “such as,” so the clause reaches any improper purpose, not only those three.

The clause is keyed to purpose because of how courts describe the problem it addresses. In Washington State Physicians Ins. Exch. & Ass'n v. Fisons Corp., the court recalled that discovery exists to put the relevant facts in front of both sides. The spirit of the rules is violated, it said, when advocates use discovery tools as tactical weapons rather than to expose the facts, through overuse of discovery, unnecessary use of defensive weapons, or evasive responses, all of which produce costly, time-consuming activity out of proportion to what is at stake.²³ Kinetic Concepts repeats the point, describing the spirit of the rules as violated when advocates use discovery tools as “tactical weapons rather than to expose the facts and illuminate the issues.”²⁴ A tactical weapon is defined by how it is used, and the same request or objection can be a legitimate tool in one lawyer's hands and a weapon in another's. A rule that tested only the text of a paper could be satisfied by careful drafting, whereas a rule that tests purpose reaches the carefully drafted paper that serves no end except delay or cost.

The difficulty with a purpose-based rule is that purpose lives in the signer's mind, and a standard requiring proof of a bad motive would fail nearly every time, because a lawyer can almost always describe a plausible good one. Courts therefore test the signer's certification under an objective standard of reasonableness, with one carve-out: the court may inquire into the signer's actual knowledge and motivation to decide whether the paper was interposed for an improper purpose.²⁵ The same passage in Liguria Foods makes two further points that matter on an exam. A court need not find bad faith in order to find improper purpose, and outward behavior that manifests an improper purpose may be considered in deciding whether the purpose was objectively improper and deserves a sanction.²⁶

The objective approach also explains why the clause reaches carelessness. In Metropolitan Opera the court observed that Rule 37, like Rule 26, authorizes sanctions for negligence or tactical intransigence as well as for willful or intentional wrongs.²⁷ The opposing party pays the same price for a response stalled by inattention as for one stalled on purpose, and the court spends the same time managing it. A rule limited to deliberate misuse would hand every obstructive lawyer the easy defense of claiming carelessness. And because the court may act on motion or on its own, a finding of improper purpose does not depend on the opposing party asking for one.²⁸

The conduct that signals improper purpose is the conduct that turns a paper from a step toward the facts into a means of pressure: tactical use of requests to run up the other side's costs, dilatory objections that postpone a response without protecting anything, and withholding of information the party owes. Those patterns appear in Chudasama v. Mazda Motor Corp.. The manufacturer met the plaintiffs' sweeping requests with objections on almost every imaginable ground, many of them boilerplate and bordering on the frivolous, and then withheld a substantial amount of information that it later conceded was properly discoverable.²⁹ The Eleventh Circuit held that the finding that Mazda had certified its responses and objections in violation of Rule 26(g) was not clearly erroneous, because the record showed abuse of discovery procedures, withholding of admittedly relevant information, and dilatory tactics.³⁰

An objection raised on every ground cannot be tied to any particular request, so the only function it visibly serves is delay, and information withheld and later conceded to be discoverable shows that the withholding protected nothing. The plaintiffs' requests in that case were themselves extremely broad and vague, yet the violation finding as to Mazda survived.³¹ The decision also separates the finding from the remedy. The court of appeals found the default and the vacatur of the protective order to be undue punishment, because most of the misconduct traced to the district court's failure to manage the case, so whether a certification was improper and what should follow are different questions. The second question is taken up later in this chapter.³²

A stem that describes a response full of objections is really asking whether those objections protect something real or only postpone production. The contrast with Mazda is easiest to see in a response that objects in earnest.

Hypothetical Illustration

A defendant receives a request for all communications between its executives and outside counsel about a product launch. After reviewing the files and consulting the client, defense counsel serves a written objection that identifies the attorney-client privilege, specifies the roughly forty emails being withheld by date, author, and subject, and produces every other responsive document on the due date. The requesting party moves to compel, and the court overrules the privilege claim as to six of the emails, which counsel produces within days.

The objection rests on a recognized protection, is tied to identified documents, and comes with prompt compliance on everything else, so nothing about it suggests a purpose to harass, delay, or add cost. That the court rejected part of the claim shows that counsel lost an argument, and a lost argument does not by itself show an improper purpose.

The clause leaves honest, specific objections alone because its target is overuse of discovery and unnecessary use of defensive weapons, so a necessary objection falls outside it.³³ Liguria Foods also tells courts to judge the certification as of the time of signing, to avoid the wisdom of hindsight, and to resolve all doubts in favor of the signer. That is why an objection that fails on the merits is not automatically a sanctionable one.³⁴ The privilege objection above would read differently if counsel had invoked privilege against every request regardless of its content, because the use made of the objection would then show what it was for.

Exam Analysis Steps

Because the clause asks about purpose yet courts test it objectively, an answer is easiest to build from the signer's conduct outward, following the method the courts describe.³⁵ The steps are these:

Fix the moment of signing and what the signer knew then, because the certification is tested as of that time and doubts are resolved in the signer's favor.
Ask what the paper actually accomplishes in the case, meaning whether it advances or protects a legitimate interest in information or only harasses, delays, or adds cost.
Examine the signer's outward conduct for patterns such as boilerplate objections untied to any request, objections that later collapse, information withheld and later conceded to be discoverable, and requests aimed at cost rather than answers.
Recognize that the court may look into the signer's actual knowledge and motivation to decide purpose, and that a finding of improper purpose does not require a finding of bad faith.

Step three does most of the work in practice, because a signer's motive seldom appears in a record except through what the signer did, and step one keeps the inquiry honest by barring the hindsight that would treat every later-overruled objection as a sign of bad purpose. Each new signing is evaluated in light of the totality of the circumstances known at that time, so an objection that looked defensible when first signed can look different when the signer repeats it after learning facts that undercut it. The practical import of the rule is to require vigilance by counsel throughout the proceeding.³⁶

Reasonable Burden and Proportionality

Rule 26(g)(1)(B)(iii) supplies the third certification. By signing, the lawyer or unrepresented party certifies, after a reasonable inquiry, that the paper is “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.”³⁸ The clause before it asked what a paper is for, and this one asks what the paper costs when measured against what the case is worth. A request or an objection can rest on sound law and an honest purpose and still demand, or resist, more than the dispute justifies, and this certification reaches that problem. Like the other clauses in (B), it is tested objectively as of the moment of signing, so the signer's sincere sense that the paper was fair does not answer the question.

The four factors in the rule are best read as four separate comparisons, each setting the burden of a paper against a different measure of what the case is about:

The needs of the case ask what the claims and defenses actually require the parties to learn, so a request is weighed against the issues in the pleadings and not against everything a lawyer might like to see.
Prior discovery in the case asks what the requester already holds, since a request that repeats earlier productions adds cost and nothing else.
The amount in controversy sets a rough dollar measure of what either side can sensibly spend.
The importance of the issues at stake captures interests that dollars do not, and can justify a search the money alone would not support.

Together the factors turn a vague complaint about burden into a comparison. A costly search can be entirely reasonable when the stakes are high, and a cheap one can be unreasonable when it duplicates what the requester already has.

The rule makes the signer certify this point because discovery has no natural brake. A request costs the sender little to type and costs the recipient a great deal to answer, so left alone the system generates more discovery than most cases can afford. In Mancia the court tied the failure to engage in discovery as Rule 26(g) requires to the widespread criticism that discovery costs so much that it prices litigants out of court.³⁹ The same opinion recorded the usual excuse for untailored Rule 33 and 34 requests, which is that the requester does not yet know enough to narrow them. The court answered that the excuse falls away if lawyers approach discovery responsibly and meet and confer before initiating it, discussing the amount in controversy and how much, what type, and in what sequence discovery should be conducted so that its cost to all parties is proportional to what is at stake.⁴⁰ Placing the judgment on the signer works because the signer controls how much is asked or how much is resisted, and can compare cost with benefit while the paper can still be changed.

The certification has a counterpart in the limits the court itself applies. Mancia pointed to Rule 26(b)(2)(C), under which the court, on motion or on its own, must limit discovery that is unreasonably cumulative or duplicative, that can be obtained from a more convenient source, that the requester could have obtained earlier, or whose burden or expense outweighs its likely benefit.⁴¹ The two provisions apply the same kind of screen at different moments. The judge's authority operates after a dispute has surfaced, which means after the cost has begun to accrue, while the certification moves the screen to the instant before the paper goes out. A lawyer whom a court must tell that a request is cumulative, available elsewhere, or out of proportion to its benefit has already certified, wrongly, that it was none of those things.

The usual exam error is to read this certification as a shield for responding parties, as though only a lawyer who resists discovery could violate it. The text reaches every request, response, or objection, so the lawyer who asks for too much certifies as surely as the lawyer who refuses too much. That point drives Chudasama, where the court of appeals noted in a footnote that the plaintiffs' unreasonably broad and vague discovery requests, and their unwillingness to narrow them, were as much to blame for the delay and excessive cost as the manufacturer's dilatory tactics.⁴² The lawyer who signed those requests had certified that they were neither unreasonable nor unduly burdensome or expensive, and requests as sweeping as those are hard to reconcile with that certification.⁴³ It is no answer that the responding party could object and carve the requests back. If only the recipient had to narrow, every sender would be free to ask for everything, and the cost of sorting out the request would land on the party who did not create the problem. The certification gives the first duty to narrow to the lawyer who writes the request.⁴⁴

Hypothetical Illustration

A supplier sues a customer for $40,000 in unpaid invoices on a single purchase order, and the supplier's lawyer serves a request for every email sent by any of the customer's 300 employees in the past ten years that mentions the supplier. The dispute turns on the purchase order, the invoices, and the delivery records, so the request demands an enormous review that costs far more than the claim is worth. The lawyer cannot certify it as reasonable in light of the needs of the case and the amount in controversy.

In a separate case, dozens of users allege that a braking component is defective, damages run into the tens of millions, and the question is whether every unit sold is unsafe. A request that the manufacturer produce its design and testing documents for that component across the years of production is expensive to answer, yet the stakes and the importance of the issues support it, and a lawyer can sign it.

Both requests are costly, and the amount in controversy and the importance of the issues are what separate them.

The responding side is measured by the same factors. A response that calls a request disproportionate, with no more than the word, supplies a conclusion and no facts, which is the boilerplate failure Mancia described: objections that a request is overbroad and unduly burdensome are improper unless based on particularized facts.⁴⁵ An objection that can satisfy the certification spells out how the request is disproportionate. One option is an affidavit from counsel stating how many documents are involved and estimating what producing them would cost.⁴⁶ Burden and expense are factual claims, so a signer who made no inquiry into the actual numbers cannot certify them after a reasonable inquiry. Requester and responder therefore answer to the same four factors, which is why the certification binds those who ask for too much as well as those who resist too stubbornly.

A violation draws the consequence that Rule 26(g)(3) supplies. Absent substantial justification, the court must impose an appropriate sanction on the signer, on the party for whom the signer acted, or on both, and the sanction may include the reasonable expenses, including attorney's fees, caused by the violation.⁴⁷ The Chudasama footnote shows why the words “caused by the violation” matter when both sides share blame for the expense. The court of appeals noted that imposing costs and fees probably would not have been an abuse of discretion, but it declined to affirm even that part of the order. The order covered all costs and fees associated with the protracted discovery dispute, while an order imposing costs generally should be limited to the reasonable expenses incurred because of the violation, and the plaintiffs' overbroad requests were as much to blame for the expense as the manufacturer's tactics.⁴⁸ Who pays and how much is a subject for later in this chapter.