The Reasonable Inquiry Standard

The Reasonable Inquiry Standard

A signature under Rule 26(g)(1) certifies a belief, and the rule dictates how that belief must be formed. By signing, an attorney or party certifies that, to the best of the person's knowledge, information, and belief formed after a reasonable inquiry, the paper meets the rule's requirements.¹ The qualifier reaches every certification the signature makes. A lawyer who signs a response stating that the client has no responsive documents therefore vouches that an inquiry adequate to support the statement took place. Any dispute over a certification begins with one question: was the inquiry reasonable?

Courts call the duty satisfied when the investigation the attorney undertook, and the conclusions drawn from it, are reasonable under the circumstances. The standard is objective, similar to the one Rule 11 imposes.² What counts is therefore what the signer did, not what the signer says was believed. The standard also asks no more than reasonableness. The certification duty makes a lawyer pause and consider the reasonableness of a request, response, or objection, but it is not meant to discourage or restrict necessary and legitimate discovery; the rule requires only a reasonable inquiry into the factual basis of what the lawyer files.³

The objectivity has one exception. A court may inquire into the signer's actual knowledge and motivation to decide whether a request, response, or objection was interposed for an improper purpose, a prong taught later in this chapter.⁴ On whether the inquiry was adequate, the signer's sincerity does not enter.

Reliance on the client is where the standard does its most frequent work. An attorney is entitled to rely on the client's assertions, but only if the investigation the attorney undertook and the conclusions drawn from it are reasonable under the circumstances.⁵ That proviso sets the limit. A client's assurance supports a signature only after the lawyer has done enough to make relying on it reasonable.

A lawyer must also read the request fairly. The advisory committee's 1993 notes warn that discovery requests should not be read in an artificially restrictive or hypertechnical manner to avoid disclosing information fairly covered by them, and that doing so is subject to appropriate sanctions under Rule 37(a).⁶

A corporation that signs a response through a representative certifies that it made a reasonable inquiry, and that inquiry means a search of its employees and agents, its lawyers included, for responsive documents. Handing a discoverable document to a lawyer will not shield it from discovery.⁷ Interrogatories follow the same logic. The party must answer on the basis of all information available to it, including what is available from its lawyer's work effort. A reasonable inquiry may include interviewing employees and reviewing documents, and the party certifies that it did so by signing the answers.⁸

When an exam stem reports that a signed response turned out wrong or incomplete, ask how the signer went about learning what to say. An inaccurate paper does not by itself show an unreasonable inquiry, and two decisions mark the poles. In Metropolitan Opera Ass'n v. Local 100, defense counsel failed to comply with Rule 26(g) by, among other things, never adequately instructing the defendant on its overall discovery obligations, failing to inquire about its document storage procedures and capabilities, failing to implement a systematic procedure for document production or retention, and failing to ask important witnesses for documents.⁹ Counsel had done none of the work from which a reasonable conclusion about the client's documents could be drawn, so the signature certified an inquiry that never happened.

In Qualcomm Inc. v. Broadcom Corp., some of Leung's interrogatory responses were inaccurate and the document productions were incomplete. After hearing Leung's testimony and reviewing the communications between Qualcomm employees and outside counsel, the court nonetheless found that his responses were made after a reasonable, although flawed, inquiry and were not without substantial justification. He took appropriate actions to learn the truth but was misled by Qualcomm employees, and the court declined to sanction him.¹⁰ The court added that he could and should have made a more thorough effort to collect and produce relevant discovery, so a reasonable inquiry need not be an ideal one. Reasonableness is decided on the totality of the circumstances.¹¹

The same facts bear on sanctions. Rule 26(g)(3) directs the court to impose an appropriate sanction on a certification that violates the rule without substantial justification, a topic developed later in this chapter.¹² Qualcomm shows the two questions running together, because the court found both a reasonable inquiry and substantial justification.¹³

A lawyer who completes these steps and is still deceived by a key employee has made a flawed but reasonable inquiry, as in Qualcomm. A lawyer who skips them has made no inquiry that the client's assurance can rescue.