Groundless Verification of Interrogatory Answers Not Sanctionable under Rule 26(g)

The individual who verified plaintiff State Farm’s interrogatory answers in State Farm Mut. Auto. Ins. Co. v. New Horizon, Inc., 2008 U.S. Dist. LEXIS 37571 (E.D. Pa. May 7, 2008), did little or nothing to insure their accuracy. The defendants moved for sanctions under Rule 26(g), which provides that “[e]very disclosure under Rule 26(a)(1) or (a)(3) and every discovery request, response, or objection must be signed by at least one attorney of record in the attorney’s own name — or by the party personally, if unrepresented — and” that, by signing, the signer “certifies that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry” that each discovery response satisfies the equivalent of Rule 11 standards. Does this subject a party representative to sanctions for groundlessly verifying interrogatory answers? Held, no, for two reasons:

(1) The “certification” required under Rule 26(g)(1) is not the “verification” required under Rule 33(a) — in the words of the Advisory Committee Note: “Rule 26(g) does not require the signing attorney to certify the truthfulness of the client's factual responses to a discovery request. Rather, the signature certifies that the lawyer has made a reasonable effort to assure that the client has provided all the information and documents available to him that are responsive to the discovery demand. Thus, the lawyer's certification under Rule 26(g) should be distinguished from other signature requirements in the rules, such as those in Rules 30(e) and 33.”

(2) Rule 26(g) applies only to counsel and unrepresented parties, not to parties or their representatives. The Court notes that there is some uncertainty in the case law about this. Compare Business Guides, Inc. v. Chromatic Commc’ns Enters., 498 U.S. 533 (1991), in which the Supreme Court held that represented parties who actually sign court papers (affidavits) are not only subject to Rule 11 but are also held to the same objective certification standard as are attorneys.

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