Choosing the Sanction Route

Choosing the Sanction Route

Each route to a sanction begins with a different event, and the event tells you which rule applies. Rule 26(g)(3) responds to a signed paper: when 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.¹ That text mentions neither a court order nor a complaint from the opponent. Rule 37(b) responds to a party's failure to obey an order to provide or permit discovery.² Rule 37(c)(1) responds to a failure to disclose information or identify a witness as Rule 26(a) or (e) requires.³ A sanctions question therefore begins with one inquiry: which of the three events occurred?

The routes differ in trigger, in initiator, and in reach:

• Rule 26(g)(3) is triggered by a signed disclosure, request, response, or objection that violates the certification; the court may act on motion or on its own; and the sanction falls on the signer, the party, or both, and may include the reasonable expenses, attorney's fees included, that the violation caused.⁴
• Rule 37(b)(2) is triggered by disobedience of an order to provide or permit discovery; the court has broad discretion over the sanction, and the menu runs from facts taken as established through default judgment and contempt; expenses must be awarded unless the failure was substantially justified or an award would be unjust; and the sanction may reach the party and sometimes the party's attorney.⁵
• Rule 37(c)(1) is triggered by a failure to provide information or identify a witness as Rule 26(a) or (e) requires; it needs no order and no earlier motion; and it bars the party from using the omitted information or witness unless the failure was substantially justified or harmless.⁶

Who may start the inquiry separates the routes as sharply as the trigger does. Rule 26(g)(3) lets the court act “on motion or on its own,” so a judge who sees an improper certification need not wait for the opponent to pay for a sanctions motion.⁷ The certification is a representation about the integrity of the discovery process. It warrants that disclosures are complete and correct when made and that requests, responses, and objections are consistent with law, free of improper purpose, and neither unreasonable nor unduly burdensome or expensive; the advisory committee speaks of a “duty to engage in pretrial discovery in a responsible manner.”⁸

Rule 37(b) sits at the end of a sequence instead. Rule 37(a) gives the court power to order disclosure or discovery, and Rule 37(b) gives it power to sanction a party for failing to comply with such an order.⁹ Until an order exists, Rule 37(b) has nothing to enforce. Chudasama v. Mazda Motor Corp. shows the gap. The trial court ruled on nothing, while Mazda objected “on almost every imaginable ground,” many of them boilerplate and bordering on the frivolous, which seemingly violated its Rule 26(g) certification that objections had a basis in law and were not unreasonable. Mazda then withheld a substantial amount of information that it later conceded was properly discoverable, and the Rules never authorize such self-help.¹⁰ The court of appeals noted that Rule 26(g) supplies, at least in theory, a basis for controlling that process.¹¹ Rule 37(c)(1) removes even the order. The bar on use follows from the failure to disclose itself, although the opponent must still raise it by objecting or moving to strike, as the earlier discussion of exclusion showed.

Three routes exist because discovery trouble surfaces at three different moments. A bad signature is a problem on the day the paper is served, before any judge has spoken. Disobedience can exist only after the court has spoken. An omitted witness damages the opponent's preparation whether or not anyone has filed a motion. Keying each rule to its event lets the court use the tool that matches the problem. The design also reflects a plain fact about discovery. The Rules place primary responsibility on litigants, who are “obliged to act responsibly and avoid abuse,” yet they also “acknowledge[] the reality that [the discovery process] cannot always operate on a self-regulating basis.” Kinetic Concepts, Inc. v. Convatec, Inc. quotes both statements from the 1983 advisory committee notes.¹² Even so, the threat of sanctions mostly lurks in the background, and the vast bulk of discovery disputes are resolved, or left unresolved, by the parties.¹³

The routes also run side by side. The court may sanction an attorney for a Rule 26(g) violation in addition to the remedies it holds under Rule 37.¹⁴ In Metropolitan Opera Ass'n v. Local 100, Hotel Employees & Restaurant Employees International Union, the Met sought judgment, fees, and further relief under Rules 26 and 37, 28 U.S.C. § 1927, and the court's inherent power. The court described Rule 37 as reaching discovery failures that are without justification and not harmless, including failure to obey an order and failure to supplement under Rule 26(e). It read Rule 37, like Rule 26, as meant to enforce strict adherence to the responsibilities counsel owe the court and their opponents.¹⁵ Rule 26(g) fits best when the defect lies in the signature itself. The court can act as soon as the paper appears, the question is whether a reasonable inquiry stood behind it, and the sanction attaches to the signer who certified it.

One question remains: what should a court do when more than one source of power fits the conduct? A state decision, offered here as a persuasive illustration and not as controlling federal law, gives one answer. In Washington State Physicians Ins. Exch. & Ass'n v. Fisons Corp., the Washington Supreme Court held that CR 26(g), the discovery sanctions rule, governed the conduct before it, rather than CR 11, CR 37, or the court's inherent power, because it “was adopted to specifically address the type of conduct involved.”¹⁶ The decision construes a state rule that parallels federal Rule 26(g), so it does not bind a federal court. Its logic still travels. A specific rule carries its own conditions, such as the reasonable-inquiry standard and the substantial-justification exception, and a court that jumped to a general power whenever it liked would make those conditions meaningless. A student should treat the choice among overlapping rules as a question of fit, and the conduct answers it.

Step two does most of the sorting, because the existence of an order separates Rule 37(b) from the other two routes. Step five keeps an answer from stopping at the first rule that fits, since one course of conduct, such as a stock objection followed by defiance of a compel order, can support more than one route at different moments.