Sanctions for Violations

A Rule 26(g) signature carries certifications. The signer certifies that a discovery request, response, or objection is "not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation," and 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."¹ The certification is the initial control on discovery abuse. It resembles the Rule 11 certification but reaches further, because it also warrants that disclosures are complete and correct when made and that discovery is proportional.² A standard restrains only if breaking it costs something, and this unit covers the cost.

The sanction attaches when a certification violates the rule "without substantial justification." That phrase separates the signer who broke the promise from the signer whose reasonable inquiry still produced a flawed paper, a line drawn in the earlier discussion of the signature and the reasonable inquiry. Once a court finds a violation without substantial justification, two questions follow in order. Must the court impose a sanction? And which sanction should it impose? The answers differ in kind, and that difference is the main point to carry out of this unit. On the first question the court has no choice. On the second it has wide discretion. A student who merges the two will say either that the court may decide whether to sanction or that a mandatory sanction means one fixed penalty, and both statements are wrong.

Sanction Is Mandatory

Rule 26(g)(3) states the consequence: "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."³ The sentence contains two findings and a command. The court first finds that the certification violated the rule, as when a paper was interposed to delay or demanded far more than the case justified. It then finds that no substantial justification excused the violation. After both findings, the verb is must, and the court may not let the violation pass.

Other sources say the same. The advisory committee's notes say 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 the rule "is designed to curb discovery abuse by explicitly encouraging the imposition of sanctions."⁴ In Qualcomm Inc. v. Broadcom Corp., the court stated that an attorney who makes an incorrect certification without substantial justification must be sanctioned, and that the sanction may fall on the attorney, the party, or both. The court added that Rule 26(g), like Rule 11, requires the court to impose an appropriate sanction on the attorney.⁵

The mandate has a practical logic. A lawyer deciding whether to serve a reflexive objection weighs the chance that anyone will notice against what follows if someone does. Discovery runs largely between lawyers, so few violations surface, and a rule that let judges excuse those few would drive the expected cost of a careless paper toward zero. A mandatory sanction makes the consequence certain once a violation is found, and certainty is what deters. Courts hold sanctioning authority from other sources too: Rule 37, 28 U.S.C. § 1927, and their inherent authority.⁶ Rule 26(g)(3) differs in making a sanction obligatory once its findings are made.

Two features of the wording follow from that purpose. The court may act "on motion or on its own," so a sanction does not depend on the opposing party asking for one, which matters because the other side may never learn what was held back. And the sanction may fall on the signer, the party, or both, which lets the court place the consequence on whoever is responsible. The certification is the lawyer's personal act, but the conduct behind it may belong to the client. The rule also leaves the form open. It says only that the sanction "may include an order to pay the reasonable expenses, including attorney's fees, caused by the violation."⁷ Must attaches to imposing an appropriate sanction, and may attaches to fee-shifting as one permitted form.

Substantial justification keeps the mandate from becoming strict liability for every inaccurate paper. The certification duty "is not meant to discourage or restrict necessary and legitimate discovery"; it "simply requires that the attorney make a reasonable inquiry into the factual basis of his response, request, or objection."⁸ What counts as reasonable "is a matter for the court to decide on the totality of the circumstances."⁹ A lawyer who investigated reasonably and was misled by the client has therefore done what the rule asks, and has the strongest claim to substantial justification.

Chudasama v. Mazda Motor Corp. shows the opposite case. The record there showed that Mazda abused the discovery procedures, withheld admittedly relevant information, and engaged in dilatory tactics, and the Eleventh Circuit held the finding of a Rule 26(g) violation not clearly erroneous.¹⁰ No reasonable inquiry explains conduct of that kind. The court of appeals still vacated the sanctions order, for reasons that belong to the second question and appear below. A rule that sanctioned every flawed paper would punish the lawyer who did the work and was deceived, and it would push lawyers to skip legitimate requests.

Step three is where contested cases turn. The violation is often plain from the paper itself, while what the signer did before signing depends on facts. Once step four is reached, whether to sanction is settled, and the court's remaining choices concern the target and the form. The tempting error is to place discretion at the start of the sequence, when it enters only at the end and covers only the form. The opposite error treats any inaccurate or incomplete paper as automatically sanctionable, which skips step three.

Choosing the Sanction

The adjective appropriate gives the court the choice that must takes away. Rule 26(g)(3) requires "an appropriate sanction" and adds that it may include an order to pay "the reasonable expenses, including attorney's fees, caused by the violation."¹² The wording sets two boundaries. The sanction must be appropriate, which ties it to the violation and the case, and an expense award reaches only the expenses the violation caused. Within those boundaries the court's freedom is real. On appeal, the finding that a certification violated the rule is reviewed for clear error, and the choice of sanction is reviewed for abuse of discretion.¹³

Violations differ in kind and in harm, which is why the rule leaves the choice to the court. A lawyer who pastes one boilerplate burden objection into a single response and a lawyer who withholds relevant documents through a year of stalling have both violated the rule, yet they have not done the same damage. One fixed penalty would have to be set high enough for the second lawyer, which would crush the first, or low enough for the first, which would leave the second untouched. Leaving the choice to the judge who watched the discovery unfold lets the response fit the lapse.

Chudasama shows where the boundaries fall. The district court entered a default against Mazda and vacated the protective order that had shielded Mazda's proprietary information, and the Eleventh Circuit called the default and vacatur "undue punishment."¹⁴ It did not condone Mazda's self-help, and it left the violation finding in place. The sanction still failed, for three reasons.

First, most of Mazda's misconduct came from the district court's own "utter failure to exercise its discretion in managing the case," so the default punished conduct the court had largely produced.¹⁵ Second, severe sanctions are "appropriate only as a last resort," and the court of appeals believed that Mazda's compliance would have been satisfactory had the district court examined the motion to dismiss and the discovery objections and issued a meaningful ruling.¹⁶ Third, the district court's failure to rule on the motion to dismiss or to address Mazda's discovery objections showed that it never analyzed the needs of the case. The judge had the case for over a year and a half, and the record gave no sign that he considered the key pretrial issue, the motion to dismiss the fraud count.¹⁷ Sanctions may have been appropriate, the court said, but the ones imposed were clearly excessive, and choosing them was an abuse of discretion. The order could not stand under Rule 37(b) or under Rule 26(g), so the court vacated it.¹⁸

The third reason echoes the certification itself, which tests every paper against "the needs of the case."¹⁹ A court that sanctions a violation of that standard must apply the same consideration when it chooses the penalty.

The vacatur of the protective order also shows that a sanction must fit its purpose. Mazda had relied on that order when it produced a large share of its discovery responses. The court of appeals reasoned that if the sanctions stood, Mazda and other large corporations might decide from the outset that they would do better to disclose no proprietary information and accept a default, losing the suit but keeping their secrets out of the public record.²⁰ A sanction that invites that calculation works against the rule's aim of curbing discovery abuse, whatever the earlier misconduct.²¹

The court of appeals also refused to save any part of the order. It found the district court's management of the case, including the sanctions, "so infected with abuses of discretion" that it had to vacate "in toto," and it said it was "simply not possible to carve out a portion of the order and affirm it."²²

Expense awards carry a limit written into the rule: the award covers "the reasonable expenses, including attorney's fees, caused by the violation."²³ Causation sets the ceiling. Fee shifting puts the cost of a violation on whoever caused it, and an award that sweeps in costs from other sources charges the signer for what someone else caused. Chudasama shows that costs can come from elsewhere, since most of Mazda's misconduct traced to the district court's failure to manage the case.²⁴

The sanction in that scene fits the violation because it measures the penalty by the harm the objection caused and leaves the merits alone. The causation limit appears there too. If the plaintiff's own request had been so broad that a motion to compel was needed anyway, the award would shrink to the share of the fight the objection caused. A court that answered the same single objection by striking the defense would choose a penalty far out of proportion to the lapse, and the Eleventh Circuit described severe sanctions as appropriate only as a last resort.²⁵

Step three is the one the trial court skipped in Chudasama, and its omission carried the vacatur even though the violation finding survived. Because the duty to sanction and the choice of sanction are separate questions, the court cannot decline to sanction a certified violation, yet it remains free to impose a modest sanction. Students err in two directions here. Some say the court may impose no sanction when the harm was small, and others say a proven violation entitles the court to any sanction up to default. The rule rejects both: the violation fixes that a sanction is required, while the violation, the needs of the case, and the causes of the dispute together set how heavy it may be.