Commercial Litigation and Arbitration

Sanctions — Premature Service of Discovery Requests Does Not Violate Rule 26(g) or 37(b)(2)

Federal Rule of Civil Procedure Rule 26(g) provides:

(1) Signature Required; Effect of Signature. Every 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 . . . . By signing, an attorney or party certifies that to the best of the person's knowledge, information, and belief formed after a reasonable inquiry:

* * *(B) with respect to a discovery request . . . , it is:

(i) consistent with these rules an warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law; [and]

(ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation . . .

* * *

(3) Sanction for Improper Certification. If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney's fees, caused by the violation.

From Maale v. Caicos Beach Club Charter, Ltd., 2009 U.S. Dist. LEXIS 14286 (S.D. Fla. Feb. 9, 2009):

[T]he Court finds that the portion of Rule 26(g) that does not address improper purpose [i.e., subdivision (1)] requires the Court, in making its inquiry into the appropriateness of served discovery requests, to consider the content of the discovery requests, as opposed to the timing of them.

[Footnote 2] In an appropriate case, the question of the timing of service of discovery may well be relevant to determining whether discovery was interposed for an improper purpose. That theory, however, is not alleged here.

***While it is certainly important for the parties to comply with Rule 26(d)'s mandates on the timing of discovery, whether a party has served discovery prematurely does not bear on the legitimacy of the actual request or the reasonableness of the legal theory under which a party proceeds. It similarly provides no insight into the question of whether the party made a reasonable inquiry into the factual basis for the discovery request.

Nor does the requirement in subsection (1)(B)(i) of Rule 26(g) that a discovery request be "consistent with [the Federal Rules of Civil Procedure]" suggest a different result. Nothing in the Advisory Committee Notes appears to indicate that the drafters of the rule intended to create a mechanism for seeking attorney's fees, thereby increasing the cost of litigation through additional briefing and imposing higher burdens upon judicial resources, simply because an opposing party served discovery too early, in the absence of any alleged improper purpose.

[Footnote 3] If the same party that prematurely served discovery opposed and continued to oppose a motion for protective order by the responding party, without substantial justification, such conduct might well warrant the imposition of sanctions under Rule 37(a)(5), Fed. R. Civ. P. See Fed. R. Civ. P. 26(c)(3). Defendants, however, have not sought sanctions under this Rule….

Rather, the Court understands the reference in Rule 26(g)(1)(B)(i) to the Federal Rules of Civil Procedure to demand that parties ensure that their discovery requests comply with the content requirements of the Federal Rules of Civil Procedure — for example, that a party's discovery requests, whether they be interrogatories issued in compliance with Rule 33(a)(2), Fed. R. Civ. P., production requests prepared pursuant to Rule 34(a), Fed. R. Civ. P., or any of the other discovery devices permitted under the Federal Rules of Civil Procedure, seek information that falls within the scope of Rule 26(b), Fed. R. Civ. P., in that the requested information is "relevant to [a] party's claim or defense," as opposed to seeking information that might relate to an entirely distinct claim that is before a different court in an unrelated case, or requesting completely irrelevant personal information.

Moreover, the Court is further persuaded that Rule 26(g)(3)'s sanctions provision does not apply to the premature filing of discovery because at the time of certification under Rule 26(g)(1), discovery is not yet served. More specifically, the signature demanded by Rule 26(g)(1) certifies that the contents of what is in the discovery request being signed at that time comports with the requirements of Rule 26(g). The discovery request may not be served until after it is already signed. As service has not occurred as of the time of signature, subsequent premature service of discovery requests alone cannot be a basis for finding that a party's signature, which occurs before such service, represents a certification that the party did not prematurely serve the discovery request. Because the only violation of Rule 26(g) that Defendants allege pertains to the premature filing of Plaintiff's discovery requests, and not the contents of those requests, the Court finds that Defendants have not established a violation of Rule 26(g) that would warrant the imposition of sanctions under Rule 26(g)(3).

Next, Defendants request an award of their attorneys' fees under Rule 37(b)(2), Fed. R. Civ. P., for Plaintiff's alleged violation of the Court's February 8, 2008, Order. Rule 37(b)(2), Fed. R. Civ. P., authorizes a court to impose sanctions "[i]f a party . . . fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a). . . ." In addition to or instead of other remedies, for such a violation, the court "must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust." Fed. R. Civ. P. 37(b)(2)(C).

In this case, Defendants argue that Plaintiff violated that aspect of the Court's February 8, 2008, Order that states,

The parties must confer within fifteen (15) calendar days after the filing of the first responsive pleading by the last responding defendant, to . . . make or arrange for the disclosures required by Rule 26(a)(1), and to develop a proposed discovery plan that indicates the parties' views and proposals concerning the matters listed in Rule 26(f). . . .

***While it is true that Plaintiff served his discovery prematurely, there is no indication in the record that Plaintiff failed to confer with Defendants within fifteen calendar days after the filing of the first responsive pleading by the last responding defendant, as the Court's February 8, 2008, Order requires. Nor could there be as of the time that Plaintiff served his discovery requests. Indeed, that is Defendants' whole complaint: no responsive pleading had been filed before Plaintiff served his discovery requests, so the Court's Order did not require a discovery conference as of the time that Plaintiff served his discovery requests. Although there can be no doubt that Plaintiff's filing of his discovery requests transgressed Rule 26(d)(1)'s limitation precluding discovery before the parties have conferred as required by Rule 26(f), Fed. R. Civ. P., unless authorized by a court order, the Court cannot conclude that Plaintiff's discovery requests violated the specific part of the Court's order that a discovery conference occur within fifteen days after service of the first responsive pleading [because no responsive pleading had yet been served. Consequently, the Court must deny Defendants' Motion for Discovery Sanctions as it seeks such sanctions under Rule 37(b), Fed. R. Civ. P.

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