Propounding requests for production of documents and electronically stored information (ESI) under Federal Rule of Civil Procedure 34 should not be undertaken lightly. There are potentially severe consequences for doing so carelessly or without regard to the constraints imposed by the rules.
Specifically, Federal Rule of Civil Procedure 26(g) requires that “every discovery request . . . must be signed by at least one attorney of record in the attorney’s own name.” The Rule also provides that “[b]y signing, an attorney . . . 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:”
consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law;
not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and
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.
Fed. R. Civ. P. 26(g)(1)(B)(i)-(iii). The broad mandates that a discovery request—which includes a request for production of documents under Rule 34—be “consistent with these rules,” “not interposed for any improper purpose,” and “neither unreasonable nor unduly burdensome or expensive” should give the propounding and signing attorney(s) pause.
The Rule spells out the consequences of an improper certification:
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.
Fed. R. Civ. P. 26(g)(3) (emphasis added). The qualifier “without substantial justification” should provide the signing attorney(s) with little comfort because the court adjudicates that standard in any given case with the benefit of hindsight and argument from the responding party’s counsel. The sanction’s mandatory nature is a compelling reason to think twice before carelessly propounding requests for production of documents, especially given that the sanction can be imposed against the signing attorney(s), the client, or both.
Against this backdrop, it is prudent to evaluate any draft document request against a checklist of potential issues or objections and to revise the request or do additional work to support it, as appropriate, to avoid a motion for sanctions under Rule 26(g) or other relief.
Below is a proposed checklist identifying some of the issues or potential objections—and the corresponding rule or other authority—to consider before finalizing, signing, and propounding a document request.
☐ Timeliness or Delay: On the front end of the discovery process, the Federal Rules of Civil Procedure establish a specific procedure for serving early document requests after service of the summons and complaint and before the parties hold the first Rule 26(f) conference. See Fed. R. Civ. P. 26(d)(2). In short, the producing party’s obligation to respond to any early document request is not triggered until the first Rule 26(f) conference. Fed. R. Civ. P. 26(d)(1), (d)(2)(B). In addition, on the back end of the discovery process, many federal trial courts impose—by operation of local rules or pretrial orders—time limitations or deadlines for serving, conducting, and/or completing discovery. You must, therefore, ask yourself whether the document request is timely under all applicable rules, including local court rules and pretrial orders. Even without a local rule or pretrial order, some courts and judges may bar late-requested discovery upon a finding that the party unduly delayed seeking it despite having had many opportunities to do so earlier in the discovery phase. If that is the case for your document request, be prepared to explain to the opposing party and the court why you sought the discovery when you did.
Rule 26(d)(1)-(2) (governing early Rule 34 document requests); Rule 34(b)(2)(A) (same); Rule 26(b)(2)(C)(ii) (stating that a court must limit discovery if it determines that the party seeking it has had ample opportunity to obtain the information by discovery sought in the action); Rule 26(g)(1)(B)(ii) (construing an attorney’s signature on a document request as certifying that the request is “not interposed for any improper purpose, such as to . . . cause unnecessary delay”); Local Rule or Court Order
☐ Reasonableness: Ask yourself whether the document request may be criticized by the opposing party or the court as unreasonable considering the needs of the case and issues in the case. If all or part of the document request is arguably unreasonable based on known information, then consider revising it to be more reasonable and, thus, more defensible.
Rule 26(g)(1)(B)(iii) (construing an attorney’s signature on a document request as certifying that the request is not unreasonable)