Commercial Litigation and Arbitration

Interrogatory Answers — Counsel’s Signature — Sanctions

Every lawyer knows that interrogatory answers are to be signed by the client, the party with substantive knowledge (Rule 33(b)(2)), not by the lawyer, who separately signs as to the objections (id.) and thereby certifies that the answers are true to the best of the lawyer’s knowledge, information and belief (Rule 26(g)(2)). Does it happen that lawyers, alone, execute interrogatory answers instead of clients? All the time. Interrogatory answers are processed as just other discovery papers and end up with lawyer signatures, alone, at the bottom. Does this matter? In Sample v. Miles, 2007 U.S. App. LEXIS 3027 (5th Cir. Feb. 9, 2007) (unpublished), the Fifth Circuit affirmed a $500 sanction against an AUSA in a pro se prisoner action on the theory that the plaintiff's interrogatories were ‛essentially“ never answered by the government because only the lawyer signed them, and the consequent failure to answer interrogatories was found to be sanctionable under Fed.R.Civ.P. 37(d). If the interrogatory answers had been accurate, it could have been a no harm, no foul, situation. But the interrogatory answers were wrong — they conflicted with the clients’ trial testimony. The Court held that the sanctioned attorney was ‛responsible for preparing witnesses and ensuring that their testimony would cohere with their earlier statements.“ That is an unfortunate locution, which makes it comforting that it appears only in an ‛unpublished“ opinion (in the wake of Fed.R.App.P. 32.1, ‛unpublished“ seems to mean that the opinion reaches the right result but the wording used to get there may not be perfect). If the earlier interrogatory answers were false, then the lawyer’s job certainly was to ensure correction under Fed.R.Civ.P. 26(e)(2), failing which sanctions may be appropriate under Rule 37(c)(1), but it did not include ‛ensuring that their testimony would cohere with their earlier statements,“ and no doubt the Court did not mean to suggest the contrary.

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