Rule 26(g) Certification

Rule 26(g) Certification

Rule 26(g) turns every discovery paper into the signer’s personal certificate. A certification is a formal assurance, given on the signer’s own authority, that stated conditions are met. An attorney of record signs each Rule 26(a)(1) or (a)(3) disclosure and each discovery request, response, and objection, and the signature certifies that, to the best of the signer’s knowledge, information, and belief formed after a reasonable inquiry, the paper meets the rule’s standards.¹ For a disclosure, the standard is that it is complete and correct when made.² For a request, response, or objection, the signer certifies three things: that the paper is consistent with the rules and warranted by existing law or by a nonfrivolous argument for changing it;³ that it is not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;⁴ and that it 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.⁵

The signature does work that the ethics rules leave undone. A lawyer crosses an ethical line, as opposed to a prudential line, only when a request plainly seeks irrelevant, privileged, or otherwise protected information, or when the volume of requests grows so large and disproportionate to the case that it shows a design to harass and oppress.⁶ Rule 26(g) demands more of the signer. Each signature certifies that the request or response is not made for an improper purpose and is not unreasonable, and the rule authorizes sanctions, including attorney fees, for violations, so that attorneys will consider seriously the legitimacy of each request and response.⁷

Rule 26(g) also gives procedural form to a concern that Rule 3.2 states in general terms. Rule 3.2 requires a lawyer to make reasonable efforts to expedite litigation consistent with the interests of the client.⁸ The improper-purpose certification lists unnecessary delay among the purposes that no signed paper may serve. Rule 3.2 judges a lawyer’s conduct as a whole; the certification attaches the concern about delay to one paper and one signature, which gives a judge a concrete object to examine.

Mancia v. Mayflower Textile Services Co. described Rule 26(g) as charging the people responsible for the success or failure of pretrial discovery, the trial judge and the lawyers for the adverse parties, with approaching the process properly. Discovery must be initiated and answered responsibly, in accordance with the letter and spirit of the rules, for a proper purpose, and in proportion to what is at issue; when it is not, the judge is expected to impose appropriate sanctions to punish and deter.⁹ The three subsections that follow take up the signature and the inquiry behind it, then the purpose certification, then the burden certification.

Signature and Reasonable Inquiry

Rule 26(g)(1) requires at least one attorney of record to sign each paper in the attorney’s own name, or the party personally if unrepresented, and to state the signer’s address, email address, and telephone number.¹⁰ The signature carries the certification, so a lawyer cannot treat it as paperwork. This subsection covers the signature itself and the inquiry that must stand behind it.

The requirement asks a lawyer to pause and consider the reasonableness of a request, response, or objection before serving it. It does not discourage or restrict necessary and legitimate discovery; it requires only a reasonable inquiry into the factual basis of the paper.¹¹

An unsigned paper certifies nothing, and Rule 26(g)(2) treats it that way. Other parties need not act on an unsigned disclosure, request, response, or objection until it is signed, and the court must strike the paper unless the signer promptly supplies a signature after the omission is called to the signer’s attention.¹² The first half of the rule protects the recipient from answering a paper that no one has vouched for. The second half keeps a clerical slip from becoming a forfeiture.

The inquiry standard decides most disputes, and it is objective. The duty is satisfied if the investigation the attorney undertook, and the conclusions drawn from it, are reasonable under the circumstances, an objective standard similar to the one Rule 11 imposes.¹³ What is reasonable is a matter for the court to decide on the totality of the circumstances.¹⁴ Because the standard is objective, a lawyer’s sincere belief that a paper was proper cannot replace an investigation. Because it asks only for a reasonable investigation, it does not demand perfection.

The inquiry reaches the client’s own information. As Kinetic Concepts, Inc. v. Convatec, Inc. put it, a signature “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.”¹⁵ A lawyer rarely holds the evidence personally, so the quality of the signature depends on what the lawyer did to put the client’s material in hand.

Boilerplate objections show most clearly what a signature without an inquiry looks like. In Mancia, the defendants failed to particularize their objections to the plaintiffs’ requests, and the court said that failure suggested a probable violation of Rule 26(g)(1), because the unparticularized objections indicated that no reasonable inquiry came first.¹⁶ An objection may not be made, the court explained, until a lawyer has “paused and consider[ed]” whether a reasonable inquiry supplies a factual basis for it, and boilerplate objections that a request is overbroad and unduly burdensome are improper unless based on particularized facts.¹⁷ What condemns such an objection is the missing inquiry, not the label. The request may in fact be burdensome, but a lawyer who has not looked at what responsive material exists or what collecting it would take has no factual basis for certifying that it is.

A flawed response can still survive. In Qualcomm Inc. v. Broadcom Corp., the court said that Leung, the signing attorney, “could and should have conducted a more thorough effort to collect and produce relevant discovery,” but that he did take appropriate actions to learn the truth and was misled by Qualcomm employees. The court declined to sanction him.¹⁸ The two decisions differ in what stood behind the signature. In Mancia, the unparticularized objections suggested that no inquiry preceded them. In Qualcomm, the lawyer made real, if imperfect, efforts to learn the truth, and the error traced to employees who misled him. Whether a violation draws a sanction is a further question, which turns on whether the certification was made without substantial justification.

Students go wrong on this rule in two directions. Some treat any incomplete or inaccurate response as a violation, forgetting that the test examines the investigation and the conclusions drawn from it. Others treat the lawyer’s good faith as enough, forgetting that the test is objective and that a form objection made without checking the facts reflects no inquiry. The question to ask is what the lawyer did before signing.

Improper Purpose

The second certification concerns why a paper was served. By signing, a lawyer certifies after reasonable inquiry that the request, response, or objection 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 put it forward in the case, so the clause asks what the signed paper was put forward to accomplish. Every discovery request, response, and objection carries a signature,²³ so the clause reaches the lawyer who answers and objects as well as the lawyer who asks.

The clause is the paper-level counterpart of Rule 3.2, which requires reasonable efforts to expedite litigation consistent with the client’s interests.²⁴ Unnecessary delay appears on the clause’s list of improper purposes, and the clause carries no exception for delay that happens to benefit the client.

A discovery paper is cheap to serve and can be expensive to answer, and the advisory committee’s notes target the temptation that follows: the spirit of the rules is violated when advocates use discovery tools as tactical weapons rather than to expose the facts and illuminate the issues.²⁵ Mancia read Rule 26(g) as charging the judge and the lawyers to conduct discovery for a proper purpose, meaning not to harass, unnecessarily delay, or impose needless expense, and as expecting sanctions to punish and deter when they do not.²⁶

The same opinion listed the conduct that betrays that charge, and the list touches all three kinds of signed paper. On the request side, a lawyer seeks excessive discovery given what is at stake, or pursues discovery to make the adversary’s cost so great that the case settles to avoid it. On the response side, a lawyer is evasive or incomplete, or delays completing discovery to prolong the litigation for tactical advantage. On the objection side, a lawyer makes boilerplate objections without particularizing their basis. Such a lawyer, in the court’s view, hinders the adjudication process, makes the deciding tribunal’s task not easier but more difficult, and violates the duty of loyalty to the procedures and institutions the adversary system serves.²⁷

The clause binds responding parties as well as requesters. In Chudasama v. Mazda Motor Corp., the court of appeals held that the finding that Mazda certified its discovery responses and objections in violation of Rule 26(g) was not clearly erroneous, because the record contained some evidence that Mazda abused the discovery procedures, withheld admittedly relevant information, and engaged in dilatory tactics. That evidence did not, however, support the severe sanctions order.²⁸

Merit does not answer the purpose question. Rule 11(b)(1) lists the same improper purposes, and courts divide over whether a nonfrivolous paper can ever have an improper purpose. The rule’s conjunctive statement of its requirements suggests that even a meritorious paper can, and a majority of courts have so held.²⁹ Rule 26(g) states its requirements the same conjunctive way, so a request’s relevance or legal warrant does not by itself defend it against a charge of improper purpose.

Expense to the other side does not by itself establish an improper purpose. The first request above has no function except pressure. The second serves a real need that happens to cost money. Whether an expense is out of proportion to what the case requires is the question for the burden certification, taught next. The same test governs responses. A lawyer who withholds responsive documents until a motion forces production, then releases them in installments, looks like the delay Mancia describes. A lawyer who asks for two more weeks because the records sit in several offices, and then produces everything, is delivering a complete answer.

A certification that violates the rule without substantial justification requires the court, on motion or on its own, to impose an appropriate sanction.³⁰ The sanctions section takes up that consequence. The third certification turns from purpose to proportion.

Unreasonable or Burdensome Discovery

Rule 26(g)(1)(B)(iii) supplies the third certification: the request, response, or objection 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.”³³ In plain terms, the signer certifies that the price of the paper is justified by what the case needs. The previous clause asked what a paper was put forward to accomplish, and this one asks what it costs and whether the cost is justified. The two clauses are independent, because a request served for a legitimate purpose can still be unreasonable or unduly burdensome in its breadth.

Rule 26(b)(1) supplies the benchmark. Discovery must be relevant to a claim or defense and “proportional to the needs of the case,” judged by the importance of the issues at stake, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense outweighs its likely benefit.³⁴ Mancia read the signature clause together with Rule 26(b)(2)(C), under which the court, on motion or on its own, must limit discovery that is unreasonably cumulative or duplicative, available from a more convenient source, obtainable earlier by the requesting party, or burdensome beyond its likely benefit. The court treated both provisions as statements of the requirement that discovery be proportional to what is at issue.³⁵ The provisions address different actors. Rule 26(b) tells the court what to cut once a dispute arises, while the signature clause tells the lawyer to do the weighing before the paper goes out, when the cost can still be avoided.

Each of the four considerations the clause names describes a different way that discovery can cost more than it is worth:

• The needs of the case: the claims and defenses define which facts are worth finding, so a demand that sweeps past them buys nothing the case requires.
• Prior discovery in the case: information already produced need not be purchased twice, so a repeated request adds cost without adding benefit.
• The amount in controversy: the money at stake sets a rough budget, since a modest claim cannot sensibly absorb a very large collection effort.
• The importance of the issues: this consideration stands apart from the dollar figure, so a case of high importance can justify spending that its dollar value alone would not.

The last two considerations can point in opposite directions, so a court weighs all four together and treats none as a cap.

The usual excuse for broad requests is that the requester does not know enough to tailor them. Mancia rejected the excuse. A lawyer who approached discovery responsibly, as the rule mandates, would confer before initiating discovery and discuss the amount in controversy and how much, of what type, and in what sequence discovery should proceed, so that its cost to all parties is proportional to what is at stake.³⁶ Conferring supplies the facts that tailoring requires, and the signature gives the lawyer a reason to do it.

The same weighing binds the lawyer who answers, because a burden objection is also a signed paper. A lawyer who objects on burden grounds certifies that the burden is real, and that certification rests on an inquiry into what responding would actually take. Boilerplate objections that a request is overbroad and unduly burdensome are improper unless based on particularized facts.³⁷

Chudasama shows the other side of the problem. The court of appeals found the plaintiffs’ unreasonably broad and vague requests, and their unwillingness to narrow them, as much to blame for the delay and excessive cost as Mazda’s dilatory tactics. It blamed the district court even more for failing actively to manage the case, and because the sanctions order was infected with abuses of discretion, it vacated the order in toto.³⁸ The case and the Mancia objection point to the same failure from opposite sides: a request so broad and vague that it invites delay and cost, and an objection that asserts a burden no one measured. Neither paper reflects any weighing of cost against need.

Step two does the real work, and reflexive requests and boilerplate objections skip it. A lawyer with no idea what the search will cost has nothing to put on the scale, so the signature certifies a weighing that never occurred.

Both requests concern the same kind of records, so subject matter does not separate them. What separates them is whether anyone asked what the case needed and what answering would cost. The stakes matter too. A request for a decade of design and testing records for one product line may be reasonable in a $30 million wrongful-death action, since the amount in controversy and the importance of the issues supply a larger budget. Expense alone is never the violation; the question is whether what the case needs justifies the expense.

Students go wrong on this clause in two ways. Some treat it as a rule for requesters only, though it binds the lawyer who answers as well, and a boilerplate burden objection is as vulnerable as an overbroad request. Others treat any expensive request as a violation, though the certification compares cost with the needs of the case, prior discovery, the amount in controversy, and the importance of the issues. When a signer violates the certification without substantial justification, the court must impose an appropriate sanction, a consequence the sanctions section takes up.³⁹