Federal Rule of Civil Procedure (FRCP) 26(g). Does this rule ring a bell? For most attorneys it probably doesn't. For those who don't know, or who can't remember, Rule 26(g) imposes a duty on attorneys to sign every discovery request, response or objection and certify that the signee conducted a “reasonable inquiry" into the facts and the law supporting the pleading. In regards to a pleading involving a disclosure, the disclosure must be “complete and correct as of the time it is made…" Often viewed as a mere formality, like agreeing to terms and conditions when purchasing a service or renting a car, signing a discovery production response should be taken seriously by attorneys or else court sanctions may await.
Even though “reasonable inquiry" is an inherently ambiguous term, courts have tried to make this standard a little clearer by establishing guidelines by which reasonableness is determined. Courts will apply a fact intensive assessment of the attorney's discovery strategy while taking into account these factors:
- Number and complexity of the issues
- Location, nature, number and availability of potentially relevant witnesses or documents
- Extent of past working relationships between the attorney and the investigation
S2 Automation LLC v. Micron Technology, Inc. (D.N.M. Aug. 14, 2012) is a prime example of how the court will analyze and punish attorneys who do not adhere to Rule 26(g). In this lengthy and vigorously disputed breach of contract case, the court ordered the plaintiff, S2 Automation, to divulge the search strategy used to produce documents after concluding that plaintiff's counsel had not met their obligations under Rule 26(g). Derived from plaintiff counsel's inadequate supervision and involvement in the discovery process, the court determined that it could not analyze whether plaintiff's search and production of documents was a “complete and correct" disclosure of requested discovery.
The court offered numerous examples which displayed how plaintiff's counsel was disengaged and uninformed about their client's discovery strategies making it nearly impossible for plaintiff's counsel to certify that a complete and correct reasonable inquiry was conducted. Some of these examples included:
- Plaintiff's counsel delegated the entire process of gathering documents for discovery to his client
- Plaintiff's counsel did not know what protocol his client followed to locate responsive documents and was unsure of the manner and form in which his client had provided documents
- Plaintiff's counsel was unaware that his client (S2 Automation) had separated attachments from emails
Based on these examples, the defendant contended that plaintiff's counsel did not appreciate or understand its duty under Rule 26(g) to complete a “complete and correct" search for and produce all responsive non-privileged information in response to their request. The defendant went on to argue that “it is not proper for counsel to sit back and allow the client to search for documents without active direction and participation by counsel; to the contrary, counsel must be actively involved in the search to ensure that all responsive documents have been located, preserved, and produced." Considering the evidence presented, the court ruled that the plaintiff's counsel was too far removed from the document-production process, violating Rule 26(g), ruling that “without some information about the search strategy S2 Automation used to provide responsive documents to requests for production, neither the court nor Micron can have a full understanding of the adequacy of S2's search strategy."
The court concluded that it was proper to compel the plaintiff to provide the defendant its search strategy for identifying responsive documents, including the actions utilized and how the plaintiff interacted with its counsel to help assist the production process.
THE E-DISCOVERY BEAT'S TAKE
Rule 26(g) is one of the many court mandated procedural tools (FRCP 26(f), FRCP 34, etc.) that legal teams can leverage to not only ensure adequate and fair discovery but also enable offensive measures to create checks and balances against opposing counsel. The question remains whether legal teams will fully utilize these procedural rules that were enacted to protect the discovery process from excessive, false, over burdensome requests. Beyond just identifying these rules, legal teams need to leverage processes and technology to demonstrate, track and prove to the court that harm has occurred.
S2 Automation highlights the importance of establishing a defined and consistently followed e-discovery process. Outside counsel and in-house legal teams need to incorporate a process that can facilitate communication, collaboration, transparency and knowledge between these entities. As the courts, corporate legal teams and outside law firms become more familiar with defensible processes surrounding e-discovery, automated workflows and documented audit trails are becoming necessities for guiding the many moving parts of e-discovery.
For more education on how automated workflows can streamline the e-discovery process, view Exterro's webcast, “Implementing Effective E-Discovery Workflows between Inside & Outside Counsel," here.
Mike Hamilton, J.D. is a Sr. E-Discovery Analyst at Exterro, Inc., focusing on educating Exterro customers, prospects and industry experts on how to solve e-discovery issues proactively with technology. His e-discovery knowledge, legal acumen and practical experience give him a valuable perspective on bridging the gap between IT and legal teams. You can find him on Google+, Twitter and Linkedin.