Duane Morris litigator Eric J. Sinrod elaborates about why opposing counsel should be more collaborative in his article “E-Discovery: Can’t We All Just Get Along?” http://www.mondaq.com/article.asp?articleid=72826. He cites the ruling of U.S. Judge Paul W. Grimm in Mancia v. Mayflower Textile Services Co., an analysis of Federal Rule of Civil Procedure 26(g) which requires the attorney record to sign every discovery disclosure, request, response or objection.
That signature “certifies that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry,” the request is reasonable and the disclosure is complete and correct. But, asks Judge Grimm, is every counsel engaging in “reasonable inquiry” before making or responding to discovery requests? He concludes that the answer was “no.”
“Too often,” writes Sinrod, “attorneys, in shoot-from-the-hip fashion, propound broad discovery requests and respond with boilerplate objections to discovery requests. Indeed, Judge Grimm was dealing with just that scenario in the Mancia case, which is what prompted his cooperation tutorial.”And according to Judge Grimm, “The failure to engage in discovery as required by Rule 26(g) is one reason why the cost of discovery is so widely criticized as being excessive to the point of pricing litigants out of court.”His solution can also be found in FRCP 26(g). Judges are authorized to impose sanctions for discovery violations, even when not requested to do so by counsel. However, he says, this recourse is one of the least-abided discovery rules. Do you agree with Judge Grimm? Will imposing sanctions force adversaries to be more cooperative with eDiscovery requests and perhaps lower the cost of eDiscovery? Would you request sanctions the next time opposing counsel obstructs your eDiscovery?