Other Sources of Sanctions

Other Sources of Sanctions

Rule 26(g)(3) reaches one kind of misconduct: a signed certification that violates the rule without substantial justification. When that trigger is met, the court must sanction the signer, the party for whom the signer acted, or both.¹ Everything else that goes wrong in discovery lies outside it. A lawyer may disobey an order, let a once-accurate answer go stale, or let evidence disappear, and each failure draws on a different source of authority. The way to choose is to identify the conduct first, because each source polices a different moment in the life of a discovery obligation.

Rule 37 is the nearest neighbor. It addresses discovery failures that are without justification and not harmless, and its leading examples are failing to obey a discovery order and failing to supplement responses as Rule 26(e) requires.² Its remedies run up to default judgment, and, like Rule 26, it reaches negligence and tactical intransigence as well as willful wrongs.³ Both rules serve one end: enforcing the “responsibilities counsel owe to the Court and to their opponents.”⁴

The two rules divide along a time line. Rule 26(g) judges a signature at the moment it is given. Rule 37 judges what a party does afterward: whether it obeys an order and whether it brings an earlier response up to date. An answer that was complete and correct when signed does not become a certification violation because the facts later change. The duty to supplement belongs to Rule 26(e), and Rule 37 is how a court enforces it.⁵

In both cases the opponent is missing material, so the missing material cannot tell you which rule applies. The conduct does: a defective certification in the first case, disobedience of an order in the second. An exam stem that reports a violated order or a missed supplement has not described a certification problem. A stem that reports a careless signature with no order in sight has not described a Rule 37 problem.

A signature on an objection carries the same certification as a signature on an answer. In one account of a discovery dispute, Mazda objected “on almost every imaginable ground,” many of them “clearly boilerplate and bordered on the frivolous,” and then withheld “a substantial amount of information that it later conceded was properly discoverable.” The source says those responses seemingly violated Mazda's Rule 26(g) certification that its objections had a basis in law and were not unreasonable, and that the Rules never authorize such self-help.⁶ The wrong lay in what was signed, and no order was needed to make it one.

General authority sits behind the specific rules, and courts reach for it last. A state-court sanctions dispute shows the ordering. The movant asked for sanctions under CR 11, CR 26(g), CR 37(d), or the court's inherent power. The court held that CR 11 sanctions are not appropriate where other court rules more properly apply, that CR 37 does not apply where the more specific sanction rule better fits the situation, and that inherent power should not be resorted to where rules adequately address the problem. CR 26(g), the discovery sanctions rule, was adopted to address the very conduct at issue, so it controlled.⁷ The case is state authority, so it illustrates the principle for a federal court without binding one. It also shows why the choice matters: a trial court that rests its ruling on an erroneous view of the law necessarily abuses its discretion.⁸

The specific rule takes priority because of what it carries with it. Rule 26(g)(3) brings the reasonable-inquiry standard, the substantial-justification exception, and an allocation of the sanction among signer, party, or both, along with an expense award measured by what the violation caused.⁹ A court that reached for a general power could skip those standards, and the limits the rule drafters chose would become optional. Inherent power therefore works as a fallback for conduct the rules do not adequately address.

Evidence can also be lost before anyone signs anything. Once litigation is commenced or a party reasonably anticipates it, the party must suspend its routine document retention and destruction policy and put a litigation hold in place.¹⁰ Counsel must learn the client's retention policies and data architecture, speak with the key players about how they stored information, and monitor compliance so that every source of discoverable information is identified and searched.¹¹ That duty can arise before any signature in the case. Rule 26(g) speaks only when someone signs a paper, so it cannot reach emails that an automatic system purged before any response was drafted. Loss of that kind is analyzed as a failure to preserve evidence, or spoliation.

The two bodies of law still meet in practice. One decision held that defense counsel violated Rule 26(g) by never adequately instructing the client on its overall discovery obligations, by failing to ask about the client's document storage procedures and capabilities, by failing to set up a systematic procedure for document production or retention, and by failing to ask important witnesses for documents.¹² A lawyer who has not learned how the client keeps its records can neither certify an honest inquiry nor know which records need to be held.