What the Signature Certifies

Rule 26(g)(1) turns a signature into a promise. By signing a disclosure, request, response, or objection, the attorney or party certifies that, to the best of the signer’s knowledge, information, and belief formed after a reasonable inquiry, the paper meets the standards the rule goes on to list.¹ The reasonable-inquiry standard, taught above, governs how the signer forms that belief; the paragraphs that follow say what the belief is about. The standard is objective. As the court explained in Mancia v. Mayflower Textile Services Co., the duty is satisfied if the investigation the lawyer undertook, and the conclusions drawn from it, are reasonable under the circumstances.²

The rule sorts discovery papers into two groups, and each group carries its own certification. A disclosure under Rule 26(a)(1) or (a)(3) falls under paragraph (A), which promises that the disclosure is complete and correct. A discovery request, response, or objection falls under paragraph (B), which makes three separate promises numbered (i) through (iii). Some opinions cite the same obligations under earlier numbering; the improper-purpose promise appears as Rule 26(g)(2)(B) in one decision and as Rule 26(g)(1)(B)(ii) in another.³ This chapter uses the current numbering.

The groups differ because the papers fail in different ways. A party volunteers its disclosures without waiting for a discovery request, so no question from the opponent exposes a gap or an error, and the signer’s certification is the only safeguard.⁴ A request, response, or objection is a move in a contest, and it can fail in three ways. It can rest on a position the rules and the law do not support, it can serve a purpose the discovery system does not serve, or it can demand or refuse at a cost out of proportion to the case. Giving each failure its own ground lets a court name the obligation the signer breached.

The grounds operate independently. A request built on sound law and made in good faith can still fail the burden ground, and a carefully reasoned response can still fail if its purpose was improper. A court deciding whether to sanction a certification that violates the rule without substantial justification must therefore identify which ground failed and why.⁵ The first subsection below takes up disclosures. The next three take up the grounds for requests, responses, and objections, in the order the rule lists them.

Complete and Correct Disclosures

Paragraph (A) of Rule 26(g)(1) requires the signer of a disclosure to certify that it is “complete and correct as of the time it is made.”⁶ The clause makes two demands. Completeness asks whether the disclosure contains everything the disclosure rules required, and correctness asks whether what it contains is accurate. Both sit under the reasonable-inquiry qualifier, so the signer vouches for them to the best of the signer’s knowledge, information, and belief formed after a reasonable inquiry.⁷

What the signer vouches for depends on what a disclosure must contain. Under Rule 26(a)(1)(A), a party must give the other parties its initial disclosures without awaiting a discovery request, except as the rule exempts or the parties stipulate or the court orders.⁸ Two of the required items show the kind of material at stake. The first is the name and, if known, the address and telephone number of each individual likely to have discoverable information, along with the subjects of that information, that the party may use to support its claims or defenses, unless the use would be solely for impeachment.⁹ The second is a copy, or a description by category and location, of all documents, electronically stored information, and tangible things that the party has in its possession, custody, or control and may use to support its claims or defenses, again unless the use would be solely for impeachment.¹⁰ The rule lists more items, and the same certification covers the pretrial disclosures under Rule 26(a)(3), which require a party to provide and promptly file information about the evidence it may present at trial other than solely for impeachment.¹¹

Completeness is measured against that list, and the list is keyed to what the party may use. A disclosure is not incomplete because the party’s files hold a witness or document the party will never rely on, and an item whose only use would be impeachment falls outside the obligation. Read “complete” to mean everything the rule requires, not everything in the file. The burden falls on the signer because a disclosure arrives unprompted: the opponent has asked no question, and only the discloser knows who its witnesses are and what its files hold. An incomplete list looks like a complete one until the signature makes the discloser answer for it.

The measuring point is the moment of signing. A disclosure that was complete and correct when made does not violate the certification because circumstances change afterward, since a lawyer cannot certify facts that do not yet exist or that no reasonable inquiry could have turned up. Later developments fall to the separate duty to supplement under Rule 26(e), which asks a different question from whether the signature was proper. Fixing the time at signing keeps the certification fair to the signer and useful to the opponent: it demands a real inquiry before the paper goes out without making the signer an insurer against everything that happens afterward.

In the plaintiff’s scene, the missing items were known to the signer and fell within the rule’s list on the day of signing, so the defect existed at the moment of certification. In the defendant’s scene, a gap of the same kind appeared only afterward. An exam stem that reports a witness missing from a signed disclosure therefore turns on one fact: whether the lawyer knew of the witness, or could have found the witness through reasonable inquiry, on the day of signing.

Consistency with Rules and Law

Rule 26(g)(1)(B)(i) supplies the first of the three grounds that a signature on a discovery request, response, or objection certifies. The signer certifies, after a reasonable inquiry, that the paper is consistent with the rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law.¹³ The provision has two halves. The first measures the paper against the rules that govern it, and the second measures the legal position the paper takes. The reasons behind each explain why the second half is drafted so generously.

The conformity half exists because the parties run discovery themselves. Counsel serve requests and responses on each other with no judge reading them first, so a departure from the rules goes unnoticed unless the other side finds it, raises it, and often litigates it. Rule 26(g) imposes an affirmative obligation to engage in pretrial discovery responsibly and consistently with the spirit and purposes of Rules 26 through 37, and the spirit of the rules is violated when advocates use discovery tools as tactical weapons rather than to expose the facts and illuminate the issues.¹⁴

The warranted-by-law half asks about the legal footing of whatever position the paper takes. Every discovery request, response, or objection should be grounded on a theory that is reasonable under the precedents or on a good-faith belief about what the law should be.¹⁵ The text builds in a safe harbor: a position need not rest on settled law, because a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law, satisfies the clause just as well.¹⁶ A clause demanding settled law alone would punish the lawyer who presses a contested point for a client, and the certification duty is not meant to discourage or restrict necessary and legitimate discovery.¹⁷ The clause therefore screens out positions with no footing and leaves room for positions a court could accept.

Four departures from the governing rules recur in discovery responses, and each traces to a specific provision. Liguria Foods, Inc. v. Griffith Labs., Inc. involved responses to interrogatories and document requests, which Rules 33 and 34 specifically govern; Rule 26, the court added, also sets important requirements for all discovery.¹⁸ Each departure below falls short of one of those requirements.

The bald privilege assertion is the first. A party that withholds otherwise discoverable information on a claim of privilege or trial-preparation protection must expressly make the claim.¹⁹ It must also describe the nature of what it withholds in a manner that lets the other parties assess the claim without revealing the protected information, and Liguria stressed that the rule requires more than bald assertions of privilege.²⁰ Both requirements answer a problem of information. The opponent cannot see the document, so a label alone gives it nothing to test, and it would have to challenge every withheld item blindly or accept every claim on faith. The description is what lets a privilege be weighed without being lost.

The block of general objections is the second departure. Many answers to interrogatories open with a list of “general objections” and then answer “subject to and without waiving” them.²¹ The party resisting production bears the burden of establishing lack of relevancy or undue burden.²² A general objection tied to no request in particular carries no part of that burden, so a response built on a block of them gives the opponent and the court nothing to evaluate and leaves unclear whether anything was withheld because of it. An objection that earns its place names the request it addresses and states the ground it rests on, which tells the opponent what has been held back and lets it move to compel.

The strained reading of a request is the third. A discovery request should not be read in an artificially restrictive or hypertechnical way to avoid disclosing information it fairly covers, and the advisory committee’s note to Rule 37 says that doing so is subject to appropriate sanctions.²³ The responding party alone knows what its files contain, so a narrow reading adopted silently costs the opponent whatever the reading hides, and the opponent has no means of discovering the loss. The Eighth Circuit has likewise explained that Rule 26(b)(1) gives no party “the unilateral ability to dictate the scope of discovery based on their own view of the parties’ respective theories of the case.”²⁴ The rule’s own words, and not the responder’s convenience, set the reach of a document request: Rule 34 targets documents and things “in the responding party’s possession, custody, or control.”²⁵

Hypothetical Illustration

A ladder manufacturer is asked for all documents relating to the design or manufacture of a particular model. Its engineers later completed a stress-test report on the side rails, finished after the design was frozen, showing cracks at the rated load. The manufacturer produces the drawings and factory records and silently omits the report because it did not come out of the design stage. A test of the design’s safety is the kind of document a request about design fairly reaches, so the omission rests on a reading the rules do not permit. A manufacturer that truly doubted the request reached the report could say so in its response, identify what it was holding back, and let the opponent take the disagreement to the court, so the question would be decided openly rather than by concealment.

The signature also certifies a reasonable inquiry, judged objectively, so a convenient reading of a request does not become reasonable just because the lawyer adopted it.

Refusing to respond until the other side has answered is the fourth departure. Rule 26(d)(3) places no limit on the sequence of discovery, and, as the commentary the court quotes reasons, one party’s initiation of discovery should not wait upon the other’s completion unless special considerations dictate delay. A party therefore cannot hold back its responses merely because the opponent has not yet answered its own requests.²⁶ If each side could condition its responses on the other’s, both would wait and discovery would stall. Each side’s obligations stand on their own, and a grievance about the opponent’s responses goes to the court rather than being answered with a refusal. The improper-purpose ground, taught next, reaches stalling from a different angle.

Each of these patterns is a certification problem because the signer vouched for the paper. Whether a sanction follows depends on whether the violation occurred without substantial justification, a question taught later in this chapter.²⁷

Exam Analysis Steps

Because the conformity ground asks whether a paper does what the rules require, it can be run as a screen on each response before it is signed, or when a signed response is attacked. The steps are these:

Identify which rule governs the paper, such as Rule 33 for interrogatories, Rule 34 for production, or Rule 26(b)(5)(A) for any withholding on privilege, and check that the paper does what that rule requires.
Confirm that every claim of privilege or trial-preparation protection is expressly made and accompanied by a description that lets the opponent assess it without revealing the protected content.
Confirm that each objection is tied to a specific request and a stated ground, rather than resting on a block of general objections.
Read each request as written and in its fair sense, and confirm that nothing it fairly covers is being held back under a narrower reading.
Confirm that the response is not conditioned on the opponent’s discovery, and that any position resting on contested law has a footing in existing law or in a nonfrivolous argument for changing it.

The first four steps apply the conformity half of the clause, and the last step applies the warranted-by-law half. Steps two and four do the most work in practice, because they catch the two forms of concealment that can pass for ordinary advocacy: a withholding that announces nothing, and a reading of the request that no one but the responder would adopt.

No Improper Purpose

Rule 26(g)(1)(B)(ii) adds a certification that looks past what a discovery paper says to the reason it was served.²⁹ By signing a request, response, or objection, the signer certifies, after a reasonable inquiry, that the paper is “not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.”³⁰ The consistency ground measures a paper against the rules and the law, and this ground measures it against the use its signer means to make of it. A paper that follows Rules 33 and 34 and rests on a respectable legal position can therefore still fail here if it was served to wear the opponent down.

A separate ground is needed because of what discovery is for. Its purpose is to make relevant information available to the litigants, since “[m]utual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.”³¹ A paper aimed at obstructing that exchange turns the machinery against the job it was built to do. Washington State Physicians Insurance Exchange & Ass’n v. Fisons Corp. states the point directly: the spirit of the rules is violated when advocates use discovery tools as tactical weapons rather than to expose the facts and illuminate the issues, whether by overuse of discovery, unnecessary use of defensive weapons, or evasive responses.³²

The rule’s three examples each name a specific injury, and that specificity shows what the ground is about. Harassment burdens the opposing party without producing information in return. Unnecessary delay postpones the day the facts come out and the case can be decided. Needless cost drains the opponent’s resources, and Fisons describes the activity that overuse, unnecessary defensive weapons, and evasive responses produce as excessively costly and time-consuming and disproportionate to the nature of the case, the amount involved, or the issues or values at stake.³³ The improper-purpose question is whether the paper was aimed at one of those injuries. A party that refuses to respond until the opponent has answered, discussed above as a departure from the rules, also invites this inquiry, because stalling one’s own responses buys delay.

Motive is where this ground departs from the others. A court tests a signer’s certification under an objective standard of reasonableness, “except that it may inquire into the signer’s actual knowledge and motivation to determine whether a discovery request, response or objection was interposed for an improper purpose,” as a decision of the Northern District of Iowa held.³⁴ The exception follows from the question the ground asks. Whether an inquiry was reasonable can be judged by comparing what the lawyer did with what a careful lawyer would have done, but whether a paper was served to harass or delay is a question about aim, and identical words can serve a legitimate aim or a tactical one. An objection that a request is overbroad may be sincere, or it may be a device for forcing motion practice, and the paper itself may not reveal which. If the court could look only at the face of the paper, a tactical filing that happened to look plausible would pass. Opening the signer’s knowledge and motivation to examination closes that gap, and it does so for this ground alone, because the other grounds can be tested without reading anyone’s mind.

An exam stem that shows a lawyer objecting, delaying, or answering narrowly does not by itself show an improper purpose, since discovery is an adversary process and objections are a normal part of it. The question is whether the paper still moves information toward the opponent. Kinetic Concepts, Inc. v. Convatec, Inc. quotes the 1983 advisory committee’s observation that the spirit of the rules is violated when advocates use discovery tools as tactical weapons, and the court added authority that the civil discovery process is to be engaged in cooperatively and that gamesmanship to evade answering discovery requests is not allowed.³⁵ Mancia likewise reads compliance with the spirit and purposes of the rules as requiring cooperation rather than contrariety and communication rather than confrontation, while stressing that the certification duty is not meant to discourage or restrict necessary and legitimate discovery.³⁶

The two scenes share the same raw material, an opponent who wants information and a party who resists, so resistance cannot be what moved the answer. What differs is where the paper leads. The confidentiality objection ends with the opponent holding documents on a short timetable, while the evasive answers end with nothing produced and the opponent charged for every round. The second pattern is the one the tactical-weapon language in Kinetic Concepts describes. Because the ground reaches motive, the court may also ask the second lawyer what the lawyer knew about the answers and what the lawyer intended by serving them, an inquiry the court would have no occasion to make for the first.

The court’s own authority matters because this ground can be enforced against a paper the opponent never challenged. Rule 26(g)(3) directs that the court, on motion or on its own, must impose an appropriate sanction when a certification violates the rule without substantial justification.³⁷ The rule does not wait for a motion because deterrence, and not only punishment, is the aim. Sanctions work better when applied not merely to penalize those whose conduct warrants it but to deter those who might be tempted to such conduct, and a rule triggered only by the opponent would leave that temptation unchecked whenever the opponent chose not to spend more on the fight.³⁸

Liguria Foods shows the authority at work. The court noted that the rule requires a certification that responses are not interposed for an improper purpose, and that it allows sanctions on the signer of a response that is incomplete, evasive, or objectively unreasonable under the circumstances.³⁹ The court then issued an order to show cause, and Liguria’s brief in response acknowledged that many of its objections were not stated with specificity but denied that it had interposed any objection for an improper purpose, pointing out that some objections carried explanations.⁴⁰ A denial of bad purpose is available only because motive is a live question on this ground, and it answers only this ground. Whether the objections complied with the discovery rules is a separate question under the consistency ground, where motive does not matter. Whether a sanction is mandatory when a justification is claimed, who bears it, and what it may include are taught in the sanctions sections below.

Not Unreasonable or Unduly Burdensome

The last of the three grounds in Rule 26(g)(1)(B) turns from a paper’s legal footing and its purpose to its cost. By signing a discovery request, response, or objection, the signer certifies, after a reasonable inquiry, that it 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.”⁴² A burden is undue when its cost is out of proportion to what the lawsuit needs, as those four factors measure it. The certification therefore calls for a cost-benefit judgment that the signer must make before the paper goes out, and it reaches requests, responses, and objections alike.

This ground examines something the first two cannot. A request can be relevant, authorized by the rules, and served in complete good faith, yet demand far more than the case could justify, and a response can be so expansive or so obstructive that it needlessly raises the price of getting information. Tying the certification to the needs of the case, the amount in controversy, and the importance of the issues forces each lawyer to weigh cost against benefit at the moment of signing, when the lawyer is best placed to do it. The certification duty requires the lawyer to pause and consider the reasonableness of the request, response, or objection, and Mancia draws the practical lesson that counsel must cooperate to identify and fulfill legitimate discovery needs while avoiding discovery whose cost and burden are disproportionally large to what is at stake.⁴³ The rule binds the lawyer who asks and the lawyer who answers, which matters because overbroad demands and obstructive responses tend to feed each other.

Chudasama v. Mazda Motor Corp. shows the certification working in both directions. The court of appeals described the Chudasamas’ requests as unreasonably broad and vague and said their unwillingness to narrow them was as much to blame for the delay and excessive cost as Mazda’s dilatory tactics.⁴⁴ Mazda, for its part, objected “on almost every imaginable ground,” including many objections that were “clearly boilerplate and bordered on the frivolous,” and then withheld “a substantial amount of information that it later conceded was properly discoverable.” The court said such responses seemingly violated Mazda’s Rule 26(g) certification that objections had a basis in law and were not unreasonable, and that the Rules never authorize such self-help.⁴⁵ The court also blamed the district court for failing actively to manage the case, found that its management of the case, including the sanctions, was so infected with abuses of discretion that the whole order had to be vacated, and said it could not carve out a portion and affirm it.⁴⁶

The case also shows why the measure of a sanction matters. Rule 26(g)(3) lets a sanction include the reasonable expenses, including attorney’s fees, caused by the violation.⁴⁷ When the requesters’ own demands were as much to blame for the cost as the responder’s tactics, a violation by one side does not account for all of the expense. The burden factors thus work in two places: they measure the signer’s paper, and they help show how far a violation reaches.

The factors in the certification track the yardstick that Rule 26(b)(1) uses for the scope of discovery. That rule permits discovery of nonprivileged matter relevant to a party’s claim or defense and “proportional to the needs of the case,” and it directs attention to the importance of the issues at stake, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.⁴⁸ Set beside that list, the four factors in the certification line up as follows:

The needs of the case is the standard Rule 26(b)(1) itself uses, since discovery must be proportional to it, and the other proportionality factors supply the detail behind it.
The amount in controversy appears in both lists.
The importance of the issues at stake appears in both lists.
Prior discovery in the case appears only in the certification, and it matters because material the opponent already holds reduces what further discovery can add.

The remaining Rule 26(b)(1) factors are taught in the sections that follow, and they fill in what the needs of the case means. That is why the scope rule supplies the measure for this ground: a signer certifying that a paper fits the case needs some gauge of what the case requires, and the proportionality list is that gauge. A lawyer who has weighed a request under Rule 26(b)(1) has done most of the work that the signature certifies.

This ground stays separate from improper purpose even though a burdensome paper often looks like a harassing one. The improper-purpose certification asks what the signer was aiming at and lets the court inquire into motive, while the burden certification measures the paper against the case under the objective standard that governs the reasonable inquiry.⁴⁹ A lawyer who sincerely believes that the broadest possible request is the safest course can therefore sign an unduly burdensome one, and no one has to prove that the lawyer meant harm. The rule also leaves room for demanding discovery, because the certification duty is not meant to discourage or restrict necessary and legitimate discovery.⁵⁰

An exam stem that reports only what answering a request would cost, say about $150,000, has not given enough to decide whether the signer violated the rule, because the same price can pass in one lawsuit and fail in another. The other side of the ledger decides the question.

The two requests carry the same price tag, so the dollar figure cannot be what moved the answer. What differs is the relation of that cost to what each case needs, together with how closely each request is aimed at the dispute. A court deciding whether the first request was unreasonable would also ask what the buyer already held from earlier discovery, because prior discovery lowers what more can add.

Exam Analysis Steps

Because the certification compares cost with need, it is best run as a ledger, with the price of the paper on one side and what the case requires on the other. The steps are these:

Identify what the paper actually demands or refuses, reading a request in its fair sense, and estimate the effort and expense of complying with it or of overcoming it.
Measure that cost against the amount in controversy and the importance of the issues at stake in the action.
Subtract what the opponent already has from earlier discovery in the case, since material already supplied adds less.
Ask whether a narrower request, a phased production, or an agreed set of search terms would serve the same legitimate need at lower cost, and whether the signer refused to narrow when asked.
Apply the comparison objectively, whatever the signer intended, and treat the paper as unreasonable only when its cost is out of proportion to what the case needs.

The second and fourth steps carry the most weight. The second separates a large request in a large case from a modest request that is still too much, and the fourth reaches the signer who, like the requesters in Chudasama, will not trim an overbroad demand when asked and so has no answer to the question whether a cheaper alternative existed.