Sanction for Improper Certification

Sanction for Improper Certification

Rule 26(g)(3) puts a price on a careless signature. When a certification violates the 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, and the sanction may include an order to pay the reasonable expenses, including attorney’s fees, caused by the violation.¹ The violation is a certification that falls short of what the signature promises, namely that the paper reflects the signer’s knowledge, information, and belief “formed after a reasonable inquiry.”²

The provision answers four questions, and a court works through them in order. Must the court sanction a violation at all? What excuses a violation? Who bears the sanction? What may the sanction contain? The first two questions decide whether any sanction follows, and the last two decide its shape.

The rule matters because a signature costs nothing and the inquiry behind it costs time. A rule that attached no consequence to a false certification would reward the signer who skipped the inquiry. Attaching a consequence reverses the incentive: the signer who made the inquiry can point to it when the paper is challenged, and the signer who skipped it has nothing to show.

Sanctions Are Mandatory

Two words in Rule 26(g)(3) divide the court’s authority. Must settles whether a sanction follows a certification that violates the rule without substantial justification, and the answer is that one does. Appropriate settles what the sanction will be, and on that question the court keeps its judgment.³ The provision is mandatory as to whether and discretionary as to what. The common misreading treats it as a single power that the court may use or leave unused.

The mandatory wording answers a known tendency. Courts have the power to sanction discovery violators, but many hesitate to impose severe sanctions in the discovery context because of the policy that cases should be decided on their merits and, though they rarely say so, because sanctions can damage the reputations and livelihoods of the lawyers who practice before them.⁴ A rule that said only “may” would let that hesitation decide the outcome, and signers would learn that a careless signature goes unpunished. The rule’s deterrent purpose points the same way. Sanctions deter discovery abuse best when courts apply them diligently, “not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent.”⁵

Courts read the provision as written. The advisory committee’s notes to the 1983 amendment, as one court quoted them, say that the provision “mandates that sanctions be imposed on attorneys who fail to meet the standards established in the first portion of Rule 26(g),” and that “Rule 26(g) is designed to curb discovery abuse by explicitly encouraging the imposition of sanctions.”⁶ In Qualcomm Inc. v. Broadcom Corp., the court stated the duty in the same terms: if an attorney makes an incorrect certification without substantial justification, the court must sanction the attorney, the party, or both, and the sanction may include reasonable attorney’s fees. The court added that Rule 26(g), like Rule 11, requires the court to impose an appropriate sanction on the attorney.⁷

The command has a trigger, and Qualcomm shows what happens when the trigger is missing. Leung’s discovery responses contained inaccurate interrogatory answers and incomplete document productions. The court nonetheless declined to sanction him, because it found that he made his responses after a reasonable, although flawed, inquiry and that they were not without substantial justification.⁸ The mandatory rule and that result fit together, because the duty attaches only to a violation without substantial justification. The next subsection develops the exception. The point here is that must is conditional: the court has no choice about sanctioning an unjustified violation, and no duty to sanction an inaccurate response that followed a reasonable inquiry.

What the court does once the duty attaches stays within its judgment. The rule calls for an appropriate sanction and says only that the sanction may include an order to pay the reasonable expenses, including attorney’s fees, caused by the violation.⁹ In the discovery context generally, the Eighth Circuit has rejected the notion that a district court abuses its discretion by imposing something other than the minimally punitive sanction in the range available.¹⁰ A mandatory duty and broad latitude coexist because the first fixes that a violation will have a consequence and the second lets the court fit the consequence to the violation. The later subsections take up the choice of target and the limits on fees.

The words on its own mean that the duty does not wait for the opponent. A party that received an evasive response may not move, because motion practice is costly or because the party cannot see what inquiry the signer made, and a deterrent that operated only on complaint would leave such signers unchecked. Courts accordingly read the rule to reach the signer of a response that is incomplete, evasive, or objectively unreasonable under the circumstances, and a court may decide sua sponte whether to impose sanctions even when the opponent never sought them.¹¹ One court’s order shows the two-part structure. It identified responses in an attached table and asked whether each violated the rule cited or otherwise abused discovery, and, if any did, what sanction or combination of sanctions was appropriate for the offending attorney.¹² The first question is the whether question, and it is where an argument of substantial justification belongs. The second is the what question.

Neither a missing motion nor a disappointing response decides the question. The court may raise the violation itself, so an opponent’s silence leaves the duty intact. The duty attaches only to a certification that violated the rule without substantial justification, so an inaccurate answer alone creates none. Once a violation without substantial justification is found, two answers are wrong: that the court may decline to sanction, and that it must order the signer to pay the opponent’s full fees. The text says only that the sanction may include reasonable expenses, including attorney’s fees, caused by the violation.¹³

Substantial Justification

The duty in Rule 26(g)(3) attaches only to a certification that violates the rule “without substantial justification,” so a court that finds an error in a signed paper still asks whether the signer had a sound basis for signing it as written.¹⁵ The rule does not define substantial justification, and the certification supplies the measure. The signer certifies what the signer believes after a reasonable inquiry,¹⁶ and the rule “simply requires that the attorney make a reasonable inquiry into the factual basis of his response, request, or objection.”¹⁷ A reasonable inquiry is therefore the natural source of justification. A response can be wrong without the signature being unjustified, and the court tells the two apart by examining what the signer did before signing.

The exception keeps diligence worth something. A lawyer depends on the client for most of the facts behind a discovery response and cannot personally verify what the client’s files contain or what its employees know. If every inaccurate or incomplete response drew a sanction, the signature would guarantee the client’s candor, and the lawyer who questioned witnesses and searched files would fare no better than the lawyer who did neither. The certification duty requires a lawyer to pause and consider the reasonableness of a response, but it “is not meant to discourage or restrict necessary and legitimate discovery.”¹⁸ The substantial-justification clause protects the first lawyer and leaves the second exposed.

Qualcomm shows the exception at work. Some of Leung’s interrogatory answers were inaccurate and his document productions incomplete. After weighing the evidence on remand, including his testimony and the communications between Qualcomm employees and outside counsel, the court found that his responses followed a reasonable, although flawed, inquiry and were not without substantial justification, because he “did take appropriate actions to learn the truth but was misled by Qualcomm employees.”¹⁹ The court did not excuse the errors. It said he “certainly could and should have conducted a more thorough effort to collect and produce relevant discovery,” and it declined to sanction him anyway.²⁰ Its reasoning rested on the principle that “[w]hat is reasonable is a matter for the court to decide on the totality of the circumstances,” and those circumstances included employees who misled the lawyer asking them questions.²¹

In Qualcomm the reasonable inquiry itself supplied the justification, and that is the usual relationship between the two ideas. A lawyer who asks the people likely to know, searches the places likely to hold the records, and follows up on contradictions stands where Leung stood. A lawyer who does none of that has nothing to point to, and a signature backed by no inquiry usually lacks substantial justification. The word usually matters because the court judges reasonableness in light of the circumstances and not against a fixed checklist.

The omitted memo is the same in both scenes, so the error cannot be what moved the answer. What differs is the signer’s conduct before the signature: the first lawyer consulted the people who would know and searched the likely files, and the second left the question unasked. The first lawyer’s position matches Leung’s, and the second lawyer’s position gives the court nothing to credit.

Chudasama v. Mazda Motor Corp. illustrates the other side of the line. Mazda answered the plaintiffs’ requests with objections “on almost every imaginable ground,” many of them “clearly boilerplate and bordered on the frivolous,” and then withheld “a substantial amount of information that it later conceded was properly discoverable.” The discussion of the case describes such responses as seemingly violating Mazda’s Rule 26(g) certification that its objections had a basis in law and were not unreasonable, and adds that “[t]he Rules never authorize such self-help.”²² Blanket boilerplate and unilateral withholding leave a court no record of inquiry like Leung’s to credit. The court of appeals nonetheless vacated the sanctions order in its entirety, for reasons that concern the measure of the sanction and not the existence of the violation.²³ The last subsection takes up those reasons.

A signer without substantial justification does not escape by showing good intentions. Rule 26(g)(3) conditions the duty on the absence of substantial justification and says nothing about intent, so an opponent seeking a sanction need not prove bad faith.²⁴ A court may sanction the signer of a response that is incomplete, evasive, or objectively unreasonable under the circumstances,²⁵ and one court has observed that Rule 37, like Rule 26, authorizes sanctions for negligence or tactical intransigence as well as for willful or intentional wrongs.²⁶ The reason follows from what the signature certifies. A certification speaks to inquiry, and a careless lawyer who skips the inquiry puts an unchecked paper into the case as surely as a deliberate one, at the same cost to the opponent and the court.

The third step does most of the work, because it separates the flawed but reasonable inquiry from the missing one. The last clause of the fifth step answers the objection signers raise most often, that nobody meant any harm.

Who Is Sanctioned

Rule 26(g)(3) names three possible targets, directing the court to “impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both.”²⁸ The signer is the person whose name appears on the paper, ordinarily an attorney of record, or the party personally when the party is unrepresented,²⁹ in which case signer and party are the same person. The party is the client for whom the paper was served. The text neither ranks the targets nor requires the court to choose only one, so the allocation falls within the court’s judgment.

The sensible way to exercise that judgment is to follow responsibility. The advisory committee’s notes, as one court quoted them, describe the provision as mandating sanctions on attorneys who fail to meet the standards of the first part of Rule 26(g),³⁰ so the lawyer who signs without the inquiry the signature certifies is the obvious target. The party remains a target because the text says so, and because a lawyer works from what the client supplies. A client who withholds documents or gives false information has put its own conduct behind the signature, and the option to sanction the party keeps that conduct from being charged entirely to the lawyer whose name is on the paper. Neither target needs to have acted in bad faith, since sanctions under Rules 26 and 37 reach negligence and tactical intransigence as well as willful wrongs.³¹

Qualcomm shows how a lawyer’s own conduct controls the lawyer’s exposure. The court declined to sanction Leung because he took appropriate steps to learn the truth and Qualcomm employees misled him, and it described the rule as reaching the attorney, the party, or both.³² The ruling concerns Leung alone. Whether a lawyer’s inquiry was reasonable is a fact about the lawyer, and it says nothing about what the client’s employees knew or why they told the lawyer what they did. The text of Rule 26(g)(3) separately names the party on whose behalf the lawyer signed.³³

Both Leung and the hypothetical lawyer signed responses that turned out to be wrong, so the error cannot be what separates them. Leung asked the right people and searched, and was deceived. The hypothetical lawyer asked nothing, so no inquiry supports that signature, and the client’s withholding adds a second source of responsibility.

Fact patterns test this subsection by shifting the spotlight. A stem that says only that the lawyer signed has not identified the target, because the rule also reaches the party. A stem that says the client lied does not excuse a lawyer who made no inquiry. A stem that shows a reasonable inquiry protects the lawyer as signer but leaves the rule’s separate mention of the party intact. The measure of a sanction on either target comes next.

Appropriate Sanctions and Fees

Rule 26(g)(3) describes the content of the sanction in two sentences. The court must impose “an appropriate sanction,” and the sanction “may include an order to pay the reasonable expenses, including attorney’s fees, caused by the violation.”³⁵ The first sentence gives the court a choice. The second names one option, expense-shifting, and limits it with the words caused by the violation. Fees are therefore available in every case that reaches this point, and the amount is measured by what the violation produced, however large the surrounding fight became.

The words “may include” make fees an example, neither a requirement nor a limit. The rule lists no other forms of sanction and leaves the choice to the court’s judgment about what fits the violation. That latitude follows from the rule’s purpose, which is to deter those tempted to abuse discovery as well as to penalize those who did.³⁶ A remedy built to deter other lawyers cannot be confined to repaying the opponent’s out-of-pocket loss, and the court need not reach for the mildest option available.³⁷

Breadth in the choice of sanction leaves the limit on expense-shifting intact. The phrase caused by the violation separates two kinds of cost. One kind exists only because the signed paper was defective: the motion to compel that evasive answers made necessary, the extra deposition needed to learn what an incomplete production left out, the time spent re-reviewing material that should have been produced the first time. The other kind would have been incurred whatever the paper said, such as the cost of pleading the case, taking depositions on the merits, or answering fair requests. The expenses must also be reasonable in amount. Without the causal link, a fee award would become a charge for losing a discovery dispute and would punish a party for costs it did not create.

Chudasama v. Mazda Motor Corp. enforced that limit. The order under review required Mazda to pay all costs and fees “associated with th[e] protracted and costly discovery dispute.” The court of appeals observed that, as the text of the rule suggests, an order imposing costs generally should be limited to “the reasonable expenses incurred because of the violation.” It found that the plaintiffs’ “unreasonably broad and vague discovery requests” and their unwillingness to narrow them were “as much to blame for the delay and excessive costs” as Mazda’s dilatory tactics, and it placed even more blame on the district court, for “failing actively to manage this case.”³⁸ An order charging Mazda with everything therefore charged it with costs that others had caused.

The court of appeals could not trim the order. It held that the district court’s management of the case, “including the imposition of sanctions, is so infected with abuses of discretion” that it had to vacate the order in toto, because it was “simply not possible to carve out a portion of the order and affirm it.”³⁹ The vacatur concerned the scope of the award and the trial court’s management of the case. It does not show that fees are unavailable, since the court’s own statement of the rule presupposes that reasonable expenses caused by a violation may be shifted. The same discussion describes Mazda’s conduct, blanket boilerplate objections and unilateral withholding, as seemingly violating its certification.⁴⁰ A violation can be real and still support only a narrower sanction than the one imposed.

A fact pattern that describes an award covering all the fees of a discovery dispute invites a search for other causes of the cost, such as the requester’s vague or overbroad demands, a refusal to narrow them, or valid objections the responder made. An award limited to the motion practice and extra discovery the violation forced tracks the rule’s text. Chudasama does not show that fees are unavailable. And “may include” means that a court that finds a violation without substantial justification must impose some sanction but need not make it a fee award.