We recently gave a talk on things in MDLs that drive us crazy. Discovery is front and center. The asymmetry of discovery is a huge source of unfairness. If plaintiffs have their way, all discovery would be about company conduct, and we’d never get to find out if those 8,000 plaintiffs used the product or suffered an injury. Mere details. And don’t get us started on a plaintiffs’ insistence that we “certify” that our discovery is complete. That certification is both an insult and a departure from the Rules. Plaintiff lawyers might seek such certification in any case, but they definitely will seek it in an MDL, where discovery is most difficult, one-sided, and expensive.
Okay, now you went and got us started. Federal Rule of Civil Procedure 26(g)(1) requires that “every discovery request, response, or objection must be signed by at least one attorney of record … [to certify] that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry (A) with respect to disclosure, it is complete and correct as of the time it is made …” Although some enterprising plaintiff lawyers have argued that this language should mean parties are required to certify that discovery responses are complete, this Rule is limited to disclosures required by Rule 26(a)(1) – not discovery responses.
The comments to subsection (g)(l) tell us that Rule 26(g) “imposes an affirmative duty to engage in pretrial discovery in a responsible manner that is consistent with the spirit and the purposes of Rules 26-37.” Fed. R. Civ. P. 26(g) advisory committee’s note. Additionally, “the signature certifies that the lawyer has made a reasonable effort to assure that the client has provided all the information and documents available to him that are responsive to the discovery demand.” Id. Although there is a duty to make a reasonable inquiry to ensure that discovery responses are complete, there is no duty to certify complete discovery. United States v. Fresenius Medical Care Holdings, Inc., No. 1:10-CV-1614-AT, 2014 WL 11517841, at *5-6 (N.D. Ga. May 13, 2014). The “complete and correct” language applies only to initial disclosures required by Rule 26(a) (l). Moore v. Publicis Groupe, 287 F.R.D. 182, 188 (S.D.N.Y. 2012).
In Moore, the plaintiff relied on Rule 26(g)(l )(A) to argue that the defendant’s counsel was required to certify that the client’s document production was complete and correct at the time it was made. Id. The court disagreed, pointing out that Rule 26(g)(l)(A) specifically applies “with respect to disclosure” and that Rule 26(g)(l)(B) applies to discovery responses and does not call for certification. Id. The court acknowledged that “[i]n large-data cases … no lawyer using any search method could honestly certify that its production is ‘complete.”‘ Id. True enough.
Similarly, in Fresenius, the plaintiff argued that the defendant’s counsel was required to certify complete document production and that the court must impose sanctions under Rule 26(g)(3) for providing a certification that violates the Rule. Fresenius, 2014 WL 11517841, at *5-6. Looking at the language of Rule 26(g)(l), the court stated that there is no certification requirement for complete document production. Id. at *6.
In conclusion, while lawyers should make a reasonable effort to ensure that a client has provided all the information and documents available that are responsive to the discovery demand, there is no requirement to certify complete document production. Such certification finds no support in the law. Let’s call such certification what it truly is: a sanctions trap.