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Court Awards Sanctions for Discovery Violations, Including Wrongful Certification Pursuant to Rule 26(g)

Posted in CASE SUMMARIES

Branhaven LLC v. Beeftek, Inc., —F.R.D.—, 2013 WL 388429 (D. Md. Jan. 4, 2013)

In this case, the court imposed sanctions for discovery violations, including wrongful certification pursuant to Fed. R. Civ. P. 26(g) and violations of Fed. R. Civ. P. 34(b) addressing the appropriate format of production. Notably, the award was made jointly and severally against Plaintiff and counsel.

In response to each of Defendants’ Requests for Production, Plaintiff stated: “[Branhaven] will make the responsive documents available for inspection and copying at a mutually convenient time.”  The responses were signed by Plaintiff’s counsel pursuant to Rule 26(g), thus certifying 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.”  At the time of the response and certification, however, counsel had done little more than forward the requests to his client and had not yet been provided with any discovery responses.  Indeed, several of the primary sources for the ultimately produced data—two email servers and two laptops—had not yet been accessed, let alone searched.  Moreover, “counsel essentially admitted” that his response was intended to “buy time and technically comply with Rule 34” and also admitted that the “response was essentially meaningless in terms of identification and production of responsive documents.”

When the requested information was eventually produced (the bulk of it “only a couple of business days before [Plaintiff’s] 30(b)(6) depositions”) it was in PDF format, without complete Bates stamping.   Defendants moved for sanctions.

Summarizing broadly, the court ultimately found that “plaintiff’s counsel in their execution of the Response to the requests for production wrongly certified that they were responding to the document requests ‘to the best of [their] knowledge, information and belief after reasonable inquiry.”  The court reasoned (in part) that “Branhaven essentially misled defendants and their counsel, in its affirmative statement that responsive documents would be ‘available for inspection and copying at a mutually available time,’ while in fact not knowing what if any responsive documents there might be and when if ever they would be identified and produced.”  Specifically addressing Plaintiff’s delay in accessing the relevant email servers, the court reasoned that “[t]here is no more obvious and critical source of information in the 21st century than a company’s email accounts” and concluded that “Plaintiff’s counsel’s failure to identify and produce this discovery in a timely fashion and in an acceptable form and manner while suggesting—if not misleading defendants—that it had identified responsive documents is sanctionable.”  The court also noted that at the time of his certification, counsel was unaware what, if any, information would be found on the laptops, in large part due to his failure to adequately follow up on his client’s discovery efforts.

Following discussion of the certification issue, the court turned its attention to Plaintiff’s chosen format of production, namely PDF “without complete Bates stamping."  Once again sparing the details, the court ultimately concluded that the PDF format “appear[ed] to violate Rule 34 and appear[ed] contrary to customary and reasonable practice especially in voluminous productions and further complicated defendants’ review of the documents, causing further expense and delay.”  The court also indicated that Defendants had successfully demonstrated that “without Bates stamping and .tiff format, the data was not reasonably usable and therefore was insufficient under Rule 34.”

In response to Plaintiff’s counsel’s assertion that neither client nor counsel had “intentionally concealed any discoverable material” nor taken actions “that were designed to frustrate these proceedings or the discovery process in particular,” the court reasoned:

That, however, is not the standard.  As plaintiff’s counsel has an affirmative duty to assure that their client responds completely and promptly to discovery requests.  Their inaction seriously frustrated the defense of this case.  The record here demonstrates a casualness at best and a recklessness at worst in plaintiff’s counsel’s treatment of their discovery duties. I agree with defense counsel that the attorneys abdicated their responsibilities while representing that they had not.  If all counsel operated at this level of disinterest as to discovery obligations, chaos would ensue and the orderliness of the discovery process among counsel in federal courts, which is exquisitely dependent on honorable attorney self-regulation, would be lost.

For Plaintiff’s “document dump” (PDF production), the court indicated it would award costs and fees related to “time spent by the litigation support analysts in receiving the document production and converting it to a reviewable format” and limited fees related to the “time spent by attorneys in drafting, filing, and prosecuting the Motion for Sanctions.”  As to Defendants’ request for attorneys’ fees and costs pursuant to Rule 26(g), the court indicated it would impose an appropriate sanction “which in the Court’s opinion are the manpower and equipment costs defendants incurred as a result of the last minute and inadequate form and manner of the document production and reasonable fees in bringing this violation to the court’s attention”—essentially the same sanctions awarded related to the format of production violation.  The court also indicated its intent to “make the award jointly and severally” against both Plaintiff and counsel.

Despite noting that counsel “acted in callous disregard for their responsibilities under the rules,” that “[t]hey clearly had not made a reasonable investigation at [the time of the certification] and clearly were ‘buying time’ through their misleading response to the requests for production of documents,” and that their actions “all speak of ‘recklessness or indifference to the law’” the court declined to impose additional sanctions pursuant to 28 U.S.C. § 1927 because defendants had already been afforded relief.