Out of concern that counsel may not have sufficiently supervised their client’s production of electronic documents, a federal judge in New Mexico has ordered the attorneys to disclose the search strategy their client used to identify responsive documents. In so ruling, the judge relied on the federal rule that requires attorneys to sign discovery responses and certify that they are “complete and correct.”

Addressing motions to compel discovery in the case of S2 Automation LLC v. Micron Technology, U.S. District Judge James O. Browning ruled that S2 Automation would have to provide to Micron “its search strategy for identifying pertinent documents, including the procedures it used and how it interacted with its counsel to facilitate the production process.”

The judge based his ruling on Federal Rule of Civil Procedure 26(g), which requires that discovery responses must be signed by attorneys who must certify that the response “is complete and correct as of the time it is made.” Judge Browning concluded that this certification obligation is analogous to the certification required under Fed.R.Civ.P. 11 and that case law interpreting Rule 11 applies to Rule 26(g).

Applying that case law to the discovery context, Judge Browning said that Rule 26(g) imposes an obligation on the attorney who signs the discovery response to conduct “a reasonable inquiry into the facts and law supporting the pleading.” He went on to explain:

Accordingly, it can become necessary to evaluate whether an attorney complied with his rule 26(g) obligations and to evaluate the strategy an attorney used to provide responsive discovery, with relevant circumstances including: (i) “[t]he number and complexity of the issues”; (ii) “[t]he location, nature, number and availability of potentially relevant witnesses or documents”; (iii) “[t]he extent of past working relationships between the attorney and the client, particularly in related or similar litigation”; and (iv) “[t]he time available to conduct an investigation.” 6 J. Moore, Moore’s Federal Practice, § 26.154[2][a], at 26-615 (3d ed. 2012). Consequently, the analysis in which courts must engage to evaluate whether a party’s discovery responses were adequate is often a fact-intensive inquiry that requires evaluation of the procedures the producing party adopted during discovery.

‘Not Proper for Counsel to Sit Back’

The issue came before the judge after Micron’s attorneys became aware that S2′s counsel may not have worked with their client sufficiently during the discovery process and may have failed to provide a number of responsive documents. They became aware of that during a discovery conference between the parties, which followed a deficiency letter Micron sent S2 detailing shortcomings in S2′s production. A sworn declaration from one of Micron’s attorneys detailed what allegedly happened during that conference:

During that call, we discussed the April 25 deficiency letter and Micron’s request that S2 supplement its production. Counsel for S2 stated that he had not yet reviewed the letter in detail. We then discussed the format for production of S2′s documents. Counsel stated that he was not aware that S2 had separated attachments from e-mails, that he had delegated the process of gathering documents to S2, and that he was generally unaware of the manner in which S2 had provided the documents. Counsel also stated that he was unsure what protocol S2 followed to locate responsive documents.

In its motion to compel, Micron argued that “it is not proper for counsel to sit back and allow the client to search for documents without active direction and participation by counsel; to the contrary, counsel must be actively involved in the search to ensure that all responsive documents have been located, preserved, and produced.” The approach taken by S2′s counsel violated their obligations under Rule 26(g), Micron asserted.

S2′s attorneys denied that they had failed to supervise the discovery process, asserting that “nothing could be further from the truth” and that they had “met with the client on multiple occasions during the discovery process in order to organize and respond to discovery.”

Despite S2′s protestations, Judge Browning wrote that Micron’s sworn declaration caused him to be concerned about the adequacy of S2′s strategy for responding to discovery requests. “The … Declaration suggests that S2 Automation’s counsel were not working closely with their client during the document-production process,” he said. “Without some information about the search strategy S2 Automation used to provide responsive documents to requests for production, neither the Court nor Micron Technology can have a full understanding of the adequacy of S2 Automation’s search strategy.”

For this reason, Judge Browning concluded that it was appropriate for him to order S2 to provide to Micron its search strategy for identifying pertinent documents. His order directed S2 to include explanations of the procedures it used and how it interacted with its counsel to facilitate the production process.

What Can We Learn from this Case?

This case serves as a reminder that the lawyer who signs a discovery response has a direct obligation under Rule 26(g) to ensure that the response is complete and correct. As Judge Browning indicated, the key inquiry is whether the lawyer who signed the response “conducted a reasonable inquiry into the facts and law supporting the pleading.”

In this case, the judge’s uncertainty about whether the lawyers lived up to that obligation resulted in his order that their client explain its search strategy. In appropriate cases, however, Rule 26(g) also authorizes courts to impose sanctions on the lawyer and the client. “The sanction may include an order to pay the reasonable expenses, including attorney’s fees, caused by the violation,” the rule says.