There are many court mandated procedural tools that exist in the Federal Rules of Civil Procedure. However, we often get questions from attorneys that lead us to believe that many are not as familiar with the rules as they should be. Granted, they are a little dry in their presentation, but in fact, they are crucial to effectively representing your clients. Once again, I would like to emphasize that attorneys need to be familiar with how to use the rules or find co-counsel that specialize in the implementation.
One of them, FRCP Rule 26(g), is a rule that can be used to ensure both fair and adequate discovery while also creating offensive measures regarding particular checks and balances against opposing counsel. However, in order to make use of the rules, attorneys first have to read and identify the rules. Then they can be used to protect the eDiscovery process from excessive or over burdensome requests. After identifying the rules, attorneys need to leverage workflows, processes and technology to track and demonstrate that harm has occurred.
FRCP Rule 26(g)
FRCP Rule 26(g) imposes a duty on attorneys to sign every discovery request, response or objection. The signature is a certification that the party conducted a “reasonable inquiry” into the facts, law and truthfulness of the document in support of the pleading. While “reasonable inquiry” is undoubtedly ambiguous, courts have been creating practical guidelines to provide further definition. While the definition is still incomplete, applying common sense to the court’s rulings provides a pretty clear path to follow.
Over time, many attorneys hurriedly affix their signatures to these documents without reviewing the contents or truly understanding what the certification truly means. We all sign App licenses for our smartphone without reading the contract or really understanding what our obligations might be. S2 Automation LLC v. Micron Technology, Inc. (D.N.M. Aug. 14, 2012) is an example of how a lax implementation of the rule might result in sanctions. While the case is a few years old, the message is still relevant and provides examples of how courts will analyze the material and punish attorneys that are not in compliance with Rule 26(g).
As part of this case, the court ordered the plaintiff, S2 Automation to reveal the search strategies that had been used to produce documents. This was ordered because the court concluded that plaintiff’s counsel had not met their obligations under Rule 26(g). During questioning of counsel, court determined that plaintiff’s counsel had not properly supervised or been directly involved in the discovery process. The court therefore could not determine if the search and production of documents was a complete and correct accounting of the requested discovery.
In its review of the plaintiff counsels action, the defendant identified a number of instances showing how disengaged the counsel had actually been in plaintiffs client’s discovery strategy and that the certification was therefore not valid. These included:
- The entire process of gathering documents for discovery was delegated from the Plaintiff’ s counsel to his client with no involvement in planning, execution or guidelines;
- Plaintiff’s total lack of knowledge of what, if any, protocol his client followed to locate responsive documents and additionally was not sure of the manner or form that the documents had been provided;
- Having no knowledge that the client (S2) had separated attachments from emails before document production.
Based on these examples, the defendant argued 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. They further stated that is not “proper for counsel to sit back and allow the client to search for documents without active direction and participation by counsel”. Additionally, they stated that counsel should be actively engaged in document production location, preservation and production.
The court ruled that the plaintiff’s counsel had not properly supervised the production and was too uninvolved in the document-production process. These actions were a violation of 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 then compelled the plaintiff to provide the defendant with its search strategy for identifying responsive documents and to include the processes and steps taken to interact with its counsel to assist in the production.
The underlying message in S2 Automation is that eDiscovery Processes need to be clearly identified, implemented and followed in order to establish a clear, transparent and defensible procedure. Both outside counsel and in-house counsel need to work with an established set of guidelines that facilitates communication between the entities to insure that all participants understand their role and execute according to corporate policy. One of the ways that defensible processes pertaining to eDiscovery can be implemented is to use eDiscovery software that has customized, automated workflows and audited documentation that provides proof of implementation and can be provided to both the opposition and the courts when needed.