The Role Of Rule 26(g) In E-Discovery

by Carlton Fields
Contact

Originally Published In I-sight.com - July 2, 2013.

An attorney’s signature on discovery responses certifies that the attorney “made a reasonable effort to assure that the client had provided all the information and documents available to him that are responsive to the discovery demand.” Advisory Note Fed. R. Civ. P. 26(g). In a case involving a large volume of e-discovery, counsel should be thorough and diligent in locating relevant electronically stored information (ESI) prior to providing a Rule 26(g) certification. Failure to do so may have consequences for both the attorney and his client.

Used Against a Party or its Counsel

Rule 26(g) could be invoked against a party or its counsel where:

  • there is evidence of spoliation,
  • there is evidence of failure to produce relevant e-discovery
  • the attorney for the party has failed to conduct sufficient due diligence in the discovery process prior to certifying the responses

If a lawyer or a party makes a Rule 26(g) certification that violates the rule, without substantial justification, the court must impose a sanction which may include the payment of reasonable attorney’s fees and expenses caused by the violation. Fed. R. Civ. P. 26(g)(3).

Sanctions for E-discovery Misconduct

Rule 26(g) has been used sparingly in the e-discovery context, a recent case from the United States District Court for the District of Maryland involved the imposition of sanctions as a result of e-discovery violations under that rule. Branhaven, LLC v. BeefTek, Inc., 288 F.R.D. 386 (D. Md. 2013).

In Branhaven, the defendants charged that plaintiff had violated Rule 26(g) in signing the response to defendants’ requests for production of documents. The requests were served on plaintiff on January 31, 2012. Plaintiff filed its response on March 21, 2012. The record demonstrated that as of March 21 plaintiff’s counsel “had done little, or nothing, in terms of a reasonable inquiry and indeed had no knowledge of the number and identity of responsive documents.” Initially, plaintiff produced 388 pages of responsive documents to defendants. On July 20, 2012, only a few business days before plaintiff’s Rule 30(b)(6) depositions, plaintiff produced 112,106 responsive documents.

When pushed for an explanation as to the delay in producing the large volume of electronic documents, plaintiff responded that it was a “start-up” and had limited litigation funds. The plaintiff wanted to attempt to locate the documents on its own without the use of an outside vendor.

The Court rejected this explanation, reasoning that the plaintiff had delayed five months before seeking an outside vendor to assist with the document production. The Court explained that it would be reasonable for a plaintiff to take one month to review and locate documents through an in house process. In this case, the plaintiff took five months to try to locate documents in house without the assistance of a vendor, and such a delay was not reasonable.

Even more important, the plaintiff essentially misled the defendants and their lawyers in its discovery responses. When the plaintiff filed its March response offering production of responsive documents for review, it had not yet even obtained access to e-mail servers, much less reviewed and identified responsive documents. In signing the responses to the request for production, plaintiff’s counsel wrongly certified that they were responding to the discovery request to the best of their knowledge, information, and belief after a reasonable inquiry.

The Court awarded defendants the reasonable litigation support costs involved in receiving and processing the additional documents from plaintiff. The Court also awarded defendants the attorneys’ fees it incurred in bringing the violation to the Court’s attention. The sanctions award was against plaintiff and its counsel jointly and severally.

Lessons Learned From the Branhaven Case

  1. Rule 26(g) can be used against a party that does not conduct a thorough, diligent search for responsive e-discovery.
  2. The attorney representing the party can be culpable for his client’s lack of diligence. Simply placing the responsibility for searching and producing documents on the company without any oversight or input is problematic under Branhaven.
  3. A document dump of e-discovery late into the case when the party and its counsel has previously certified that it has conducted a reasonable search for documents may create sanctionable conduct.

Ultimately, Branhaven demonstrates that it is important from the outset of the case for an attorney to understand:

  • his or her client’s IT infrastructure
  • where responsive documents may be located
  • the best method to search for and produce responsive documents

Taking an active approach to manage e-discovery can mitigate the risks that an attorney or company may face in litigation

 

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Carlton Fields | Attorney Advertising

Written by:

Carlton Fields
Contact
more
less

Carlton Fields on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.