Commercial Litigation and Arbitration

Rule 26(g), Overly Broad Discovery Requests, Boilerplate Objections and Excessive Discovery Practice Generally

From Mancia v. Mayflower Textile Servs. Co., 2008 U.S. Dist. LEXIS 83740 (D. Md. Oct. 15, 2008) (Grimm, M.J.):

One of the most important, but apparently least understood or followed, of the discovery rules is Fed. R. Civ. P. 26(g), enacted in 1983. The rule requires that every discovery disclosure, request, response or objection must be signed by at least one attorney of record, or the client, if unrepresented. Fed. R. Civ. P. 26(g)(1). The signature "certifies that to the best of the person's knowledge, information, and belief formed after a reasonable inquiry," the disclosure is complete and correct, and that the discovery request, response or objection is: (a) consistent with the rules of procedure and warranted by existing law (or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law); (b) is not interposed for any improper purpose (such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation); and (c) is neither unreasonable nor unduly burdensome or expensive, (considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action). ***

First, the rule is intended to impose an "affirmative duty" on counsel to behave responsibly during discovery, and to ensure that it is conducted in a way that is consistent "with the spirit and purposes" of the discovery rules, which are contained in Rules 26 through 37. ***

Second, the rule is intended to curb discovery abuse by requiring the court to impose sanctions if it is violated, absent "substantial justification," and those sanctions are intended to both penalize the noncompliant lawyer or unrepresented client, and to deter others from noncompliance.

Third, the rule aspires to eliminate one of the most prevalent of all discovery abuses: kneejerk discovery requests served without consideration of cost or burden to the responding party.

Similarly, Rule 26(g) also was enacted over twenty-five years ago to bring an end to the equally abusive practice of objecting to discovery requests reflexively-but not reflectively-and without a factual basis.

The failure to engage in discovery as required by Rule 26(g) is one reason why the cost of discovery is so widely criticized as being excessive-to the point of pricing litigants out of court. See, e.g., Am. Coll. of Trial Lawyers & Inst. for the Advancement of the Am. Legal Sys., Interim Report on the Joint Project of the American College of Trial Lawyers Task Force on Discovery and the Institute for the Advancement of the American Legal System 3 (2008) ("Although the civil justice system is not broken, it is in serious need of repair. The survey shows that the system is not working; it takes too long and costs too much. Deserving cases are not brought because the cost of pursuing them fails a rational cost-benefit test, while meritless cases, especially smaller cases, are being settled rather than being tried because it costs too much to litigate them."); Gregory P. Joseph, Trial Balloon: Federal Litigation—Where Did It Go Off Track?, Litig., Summer 2008, at 62 (observing that discovery costs, particularly related to ESI discovery, is partly responsible for making federal litigation "procedurally more complex, risky to prosecute, and very expensive," causing litigants to avoid litigating in federal court); The Sedona Conference, The Sedona Conference Cooperation Proclamation 1 (2008)..., available at /cooperation_Proclamation_Press.pdf ("The costs associated with adversarial conduct in pre-trial discovery have become a serious burden to the American judicial system. This burden rises significantly in discovery of electronically stored information ("ESI"). In addition to rising monetary costs, courts have seen escalating motion practice, overreaching, obstruction, and extensive, but unproductive discovery disputes-in some cases precluding adjudication on the merits altogether . . . ."); Kent D. Syverud, ADR and the Decline of the American Civil Jury, 44 UCLA L. Rev. 1935, 1942 (1997) ("Our civil process before and during trial, in state and federal courts, is a masterpiece of complexity that dazzles in its details-in discovery, in the use of experts, in the preparation and presentation of evidence, in the selection of the factfinder and the choreography of the trial. But few litigants or courts can afford it.").

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