Sanction for Improper Certification

Rule 26(g)(3) tells a lawyer, at the moment of signing, what follows if the inquiry behind a discovery paper was inadequate or the paper itself was improper. If a certification violates the 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, and the sanction may include an order to pay the reasonable expenses, including attorney’s fees, caused by the violation.¹ A promise that cost nothing to break would mean little, and this provision gives the signature its force.

Each phrase of that sentence answers a separate question, and the three subsections below take them in order. “Must” settles whether the court has any choice about acting once a violation is shown. “Without substantial justification” marks the violations that escape a sanction, and it ties the provision back to the reasonable-inquiry standard. “Appropriate sanction,” the list of targets, and the permissive “may include” describe the remedy: who bears it, in what form, and for how much. Because the sanction attaches to the certification, it reaches every paper that must carry a signature, so a lawyer who serves an unreasonable request is exposed just as a lawyer who signs an unsupported objection is.²

The design pairs a firm duty with a flexible remedy, and each half protects the other. An optional sanction would turn the certification into a hope, because a lawyer deciding whether to sign a stock objection would be betting on whether a particular judge would bother to act. A fixed remedy would force the same penalty on a minor lapse and a flagrant abuse, and judges would be tempted to avoid a harsh result by finding no violation at all. Requiring a sanction while leaving its form to the court makes enforcement predictable and still lets the response fit the harm.

Mandatory Duty to Sanction

The sentence that creates the sanction contains two decisions, and students tend to run them together. The first is whether to sanction at all. Once a court finds that a certification violated the rule and nothing substantially justified the violation, “must impose” leaves no option to let the matter pass.³ The second decision is which sanction to impose, and “appropriate” leaves that choice to the court. Only one condition limits the first decision, the phrase “without substantial justification,” which the next section takes up.

The drafters made the first decision mandatory because they were correcting a pattern. Judges already had power to sanction lawyers who abused discovery, drawn from Rule 37, 28 U.S.C. § 1927, and the court’s inherent authority, but the advisory committee noted a reluctance to use it. Rule 26(g) therefore “makes explicit the authority judges now have to impose appropriate sanctions and requires them to use it.”⁴ The reluctance had understandable roots. Courts hesitate over severe discovery sanctions because of the policy that cases should be decided on their merits, and many judges also shy from steps that may damage the reputations and livelihoods of the lawyers who practice before them.⁵ A rule saying only “may” would leave every sanction decision to be made against those pressures, one case at a time. The advisory committee’s note instead describes the provision as one that “mandates that sanctions be imposed on attorneys who fail to meet the standards” of the certification, and it calls Rule 26(g) a device to curb abuse by explicitly encouraging sanctions.⁶

The mandate also serves deterrence. Sanctions under the rule are meant both to penalize the noncompliant lawyer or unrepresented party and to deter others from noncompliance.⁷ Deterrence depends on expectation. Discovery proceeds with no judge watching, and the lawyer deciding whether to sign a stock objection is weighing what is likely to follow. If a violation reliably draws a sanction, the weighing favors a reasonable inquiry before signing, whereas a consequence that depends on a judge’s mood in a given case gives the lawyer little reason to pause.

The court of appeals in Chudasama v. Mazda Motor Corp. confined discretion to the second decision. What sanction is appropriate, it said, is committed to the district court’s discretion, and the advisory committee’s note calls the nature of the sanction “a matter of judicial discretion to be exercised in light of the particular circumstances.”⁸ The form is left open because the violations the rule reaches range from one careless objection to a long pattern of stonewalling, and a sanction on the signer, the party, or both, with or without an order to pay expenses, lets the court fit the remedy to the conduct. That discretion is not confined to the gentlest option, since the Eighth Circuit has rejected the notion that a court abuses its discretion by imposing something other than the minimally punitive sanction available.⁹

Because the two decisions call for different judgments, an appellate court reviews them differently. It reviews the finding that a certification violated Rule 26(g) for clear error, and it reviews the choice of sanction for abuse of discretion.¹⁰ The finding of a violation is a factual determination about what inquiry the signer made and what the paper was for, and the trial judge who watched the discovery unfold is best placed to make it. The choice of sanction is a judgment about proportion, which an appellate court disturbs only when the trial court has exceeded sound discretion. Chudasama shows the two standards producing different results in one appeal. Mazda had objected “on almost every imaginable ground,” including many objections that were “clearly boilerplate and bordered on the frivolous,” and it had withheld information it later conceded was discoverable.¹¹ Because the record contained some evidence that Mazda abused the discovery procedures and engaged in dilatory tactics, the court of appeals held the finding of a Rule 26(g) violation not clearly erroneous. It nevertheless held that this evidence could not support the severe sanctions order, a default and the vacatur of a protective order, because most of Mazda’s misconduct traced to the district court’s own failure to manage the case and because such sanctions are appropriate only as a last resort.¹² A mandatory duty to sanction therefore does not mean a mandatory severe sanction.

The words “on motion or on its own” mean that the court need not wait to be asked. Even where the opposing party did not seek sanctions under Rule 26(g), the court may decide for itself whether to impose them.¹³ The structure of the rule explains why. Rule 26(g) focuses partly on the integrity of the discovery process, and the advisory committee speaks of a “duty to engage in pretrial discovery in a responsible manner.”¹⁴ If enforcement depended on a motion, it would turn on whether the opponent wanted to bear the cost of a sanctions fight or feared scrutiny of its own papers, and the court’s interest in that integrity would go unprotected whenever the opponent stayed silent.

The sanction for an improper certification also operates in addition to the court’s remedies under Rule 37, so a single course of conduct can expose a lawyer to both.¹⁵

Substantial Justification

Rule 26(g)(3) makes a sanction mandatory only when a certification violates the rule “without substantial justification,” and that phrase is the one condition standing between a proven violation and the court’s duty to act.¹⁷ The earlier discussion of the objective standard asked whether a certification fell short at the moment of signing. This phrase asks a second question, which arises only after a shortfall is found: whether the signer’s justification was strong enough that a sanction would be unfair. The rule text does not define the phrase, so the decisions give it content by looking at what the signer did before signing and what the signer was told.

The exception matters because an objective standard can produce a violation finding against a lawyer who behaved sensibly. A lawyer can ask the right people, search the right places, and still sign an inaccurate paper because a client withheld or misdescribed something. Sanctioning that lawyer would punish the one variable counsel could not control, the client’s candor, and it would teach other lawyers nothing about what to do differently. A lawyer who never checked is in the opposite position, because that lawyer could have avoided the violation by doing exactly what the rule asks, and a sanction there changes behavior, which is the deterrence Rule 26(g) exists to deliver. The exception therefore filters on the signer’s own conduct and leaves the mandatory duty fully in place wherever that conduct was deficient.

Qualcomm supplies the clearest example of a signer who escapes. Some of Leung’s interrogatory responses were not accurate, and his document productions were not complete. After weighing all the evidence from the remand proceedings, including his testimony and the correspondence between Qualcomm employees and outside counsel, the court found that his responses were made after “a reasonable, although flawed, inquiry” and were not without substantial justification, because he “did take appropriate actions to learn the truth but was misled by Qualcomm employees.”¹⁸ The same passage says he could and should have made a more thorough effort to collect and produce relevant discovery, and the court still declined to sanction him.¹⁹ The two statements fit together because the exception asks for a reasonable inquiry and does not demand a perfect one, and deception by the client’s own people is a cause that a reasonable inquiry may fail to reveal.

The failing side of the line appears in Cache La Poudre, a case involving Land O’Lakes. Retained counsel there represented that the company had “made every effort to produce all documentation and provide all relevant information.” The court found it difficult to see how counsel could legitimately make that claim “without some showing of a reasonable inquiry,” and it added that a litigation hold, though an important first step, does not end the matter, because the obligation to conduct a reasonable search for responsive documents continues throughout the litigation.²⁰ The two decisions differ in where the shortfall came from. Leung had taken real steps, and the gap traced to what employees told him. In Cache La Poudre nothing in the opinion shows a reasonable inquiry behind counsel’s representation, so nothing made it reasonable when it was made.

That difference marks the two ways an exam answer goes wrong. Reading every inaccurate response as sanctionable ignores the exception, and reading every client misstatement as an excuse ignores why the exception applied in Qualcomm: Leung was spared because he first took appropriate actions to learn the truth, and the employees’ deception excused the shortfall only against the background of that effort.

Hypothetical Illustration

Defense counsel explains to the company’s records manager what a document request covers, asks in writing for every location where project files are kept, and tests the answer against the information technology director’s description of the company’s systems. The records manager leaves out a personal drive that holds a project folder, and counsel signs a response certifying completeness. When the folder surfaces months later, the shortfall traces to a concealment that counsel’s checks could not have exposed, so the signer has a substantial justification and the mandatory duty to sanction does not attach.

In another matter, counsel forwards the request to the records manager, signs whatever comes back, and certifies completeness. The same folder surfaces later, but here the omission traces to counsel’s failure to ask anyone to check the manager’s account, and nothing justifies the certification.

Two instructions from the decisions keep the justification question fair to the signer. The certification is tested as of the time the paper is signed, the court must strive to avoid the wisdom of hindsight, and all doubts are resolved in favor of the signer.²¹ The reason is that the later appearance of a missing document is the ordinary evidence that a paper was wrong, and it makes almost any signer look careless in retrospect. If that evidence settled the justification question, the exception would collapse into a rule that punishes bad outcomes, and lawyers would respond by hedging every response until it meant nothing. The Qualcomm court found the responses inaccurate and incomplete and still judged Leung on what he did and what he was told, not on the fact that the errors came to light.²² Resolving doubts for the signer carries the same protection into close calls, so a record that can be read either way ends without a sanction.

The protection runs only to the signing it concerns. Each new signing of a request, response, or objection is evaluated in light of the totality of the circumstances known at that time, which is why the practical import of Rule 26(g) is that counsel must stay vigilant throughout the case.²³ A justification that held in March therefore does not automatically cover a response signed in July after counsel has learned that the earlier search missed something. The Cache La Poudre court stressed the same continuity when it observed that the duty to search reasonably does not end with the litigation hold.²⁴

Exam Analysis Steps

Because the justification question arises only after a defect has been found, it is best run as a sequence that starts from the signer’s conduct. The steps are these:

Confirm that the certification fell short under the objective standard, so that the justification question is reached only for a paper that violated Rule 26(g)(1).
Identify what the signer did before signing, including whom counsel asked, which sources were checked, and what was done to verify the client’s account.
Decide whether the shortfall traces to something a reasonable inquiry would not have exposed, such as the client’s misleading statements, or to an assumption the signer never tested.
Judge the signing as of that moment, without hindsight and with doubts resolved for the signer, and treat any later signing as a new certification measured against what the signer had learned by then.

Step three does the real work, because a misled lawyer who verified earns the exception while a lawyer who assumed does not. Step four keeps a justification from outliving the facts that supported it.

Who Pays and How Much

The second half of Rule 26(g)(3) supplies the remedy once a court has found an improper certification that lacks substantial justification. The court must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both, and the sanction may include an order to pay the reasonable expenses, including attorney’s fees, caused by the violation.²⁶ The preceding section settled that the court has no choice about acting, so what remains is what the duty produces. The text answers three separate questions. The list of targets answers who bears the sanction, the word “appropriate” together with the permissive “may include” answers what form it takes, and the phrase about expenses caused by the violation answers how much money can be charged. Each answer leaves room for the judge’s discretion, and each has a limit that the decisions have drawn.

The rule lets the court choose among the signer, the party, or both because responsibility for an improper paper can rest in different places. The lawyer who signs controls the inquiry and makes the certification, so the signer is the natural first target. A client, however, may have supplied false information or told the lawyer to stall, and a sanction aimed only at the lawyer would leave untouched the party that benefited from the paper. The reverse problem is just as real, since a sanction aimed only at the client would let a lawyer who signed with no inquiry escape the consequence of a certification that lawyer personally made. Allowing either target, or both, lets the cost follow the responsibility rather than the signature. An unrepresented party signs the paper personally, so that party is the signer and no split arises.²⁷

The money component carries a limit in the rule’s final words, which confine the award to expenses caused by the violation.²⁸ That causal limit keeps a fee award compensatory. Its job is to return the other side to the position it would have occupied had the paper been proper, and an award that sweeps in expenses the violation did not produce stops compensating and starts punishing without the findings a punitive sanction would need. The limit also tracks fault when several people contributed to a dispute, because the expense of a fight that two sides helped create can be traced only partly to one of them.

In Chudasama, the district court required payment of all costs and fees “associated with th[e] protracted and costly discovery dispute.” The court of appeals observed that costs and fees probably would not have been an abuse of discretion, since Rule 26(g)(3) suggests just such a sanction, but it could not simply affirm that part. The order reached too far, because an order imposing costs generally should be limited, as the rule’s text suggests, to “the reasonable expenses incurred because of the violation” (the current text reads “caused by the violation”). The plaintiffs’ unreasonably broad and vague requests, and their unwillingness to narrow them, were as much to blame for the delay and excessive costs as Mazda’s dilatory tactics, and the district court was more to blame still for failing actively to manage the case.²⁹ The court of appeals vacated the sanctions order as a whole.³⁰

The word “appropriate” supplies a second limit, and it asks the court to fit the sanction to the case and not merely to the violation. In exercising its discretion under Rule 26(g)(3), the Chudasama court said, the district court must analyze the needs of the case.³¹ The opinion cites Rule 26(g)(2)(C), the numbering then in force for the proportionality factors that now appear in Rule 26(g)(1)(B)(iii). That clause directs the signer to consider the needs of the case, prior discovery, the amount in controversy, and the importance of the issues.³² The link is deliberate: the certification was measured against those factors, so the remedy for breaking it is measured against them too, and a sanction chosen without looking at the case cannot be shown to fit it. The district court never ruled on Mazda’s motion to dismiss and never addressed Mazda’s discovery objections, which showed it had not analyzed the needs of the case, and its choice of sanction was an abuse of discretion even though some sanction may have been appropriate.³³

Severity compounds the problem. The order in that case entered a default and vacated a protective order, yet the court of appeals described such severe sanctions as appropriate only as a last resort, and it believed that a meaningful ruling on Mazda’s motion and objections would have produced satisfactory compliance.³⁴ A sanction that jumps to the end of the scale when a ruling would have solved the problem skips the steps that make a last resort last. The measured award in the manufacturer example and the Chudasama order differ along exactly this axis, because the first was sized to a cost the violation created and the second was sized to the whole dispute and chosen without looking at the case.

The rule’s phrasing also leaves room for sanctions that involve no payment at all, because fees appear only as something the sanction “may include.”³⁵ The Liguria court faced a defendant that disputed any improper purpose behind its discovery responses, and the defendant proposed that, if the court concluded sanctions were appropriate, the sanction be a presentation to a group of civil litigators or to law students in an advanced civil procedure course. Its suggested topics were Rules 26, 33, and 34, proper approaches to propounding and responding to discovery, and the reasons “boilerplate” objections are improper.³⁶ That was the party’s own proposal, and it does not fix what a court may order. It illustrates a measure aimed at a habit of stock objections, which a fee award tied to measurable expense may not reach, and it fits the advisory committee’s statement that the nature of the sanction is a matter of discretion exercised in light of the particular circumstances.³⁷

An exam answer keeps these questions apart. The duty to sanction is mandatory, but neither a fee award nor the harshest available sanction follows automatically from a violation. The court must fit the sanction to the responsible party, the expense actually caused, and the needs of the case. Later sections take up the remedies that depend on Rule 37 and not on the signature.