Court Highlights Cooperation Requirements of Discovery under Rule 26, Rules Objections Waived for Failure to Be Specific, and Orders Meet and Confer to Resolve Remaining Disputes

Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354 (D. Md. 2008)

In this employment case, plaintiffs filed several motions to compel supplemental responses to their extensive discovery requests after defendants allegedly failed to adequately respond.  The case was eventually referred to Chief United States Magistrate Judge Paul Grimm for the purpose of resolving all of the discovery disputes.

In the initial review of defendants’ objections to the requests, the court noted “an obvious violation” of Federal Rule 33(b)(4) and “facially apparent violations” of Federal Rule 33(b)(2) which require that objections to interrogatories and requests for production be laid out with specificity or else they are waived.  Moreover, the court suggested that the defendants’ failure to be particular in their objections “suggested a probable violation” of Federal Rule 26(g)(1) which requires a reasonable inquiry prior to objecting to an interrogatory or document request.  Accordingly, the court scheduled a hearing to address the issues.

At the hearing, the court raised concerns regarding both defendants’ inadequate objections to discovery and the breadth of plaintiffs’ requests given what was at stake in the case.  Recognizing its obligation, sua sponte, to limit the reasonableness of discovery requests, the court relied on the “proportionality analysis” required under Federal Rule 26(b)(2)(C) and ordered the parties to meet and confer in good faith to determine whether the goals of discovery could be accomplished in a manner proportional to what was at stake.

In a written opinion to more fully explain his concerns, suggestions and rulings, the court wrote:  “One of the most important, but apparently least understood or followed, of the discovery rules is Fed.R.Civ.P. 26(g), enacted in 1983.”  The court pointed out that rule 26(g) requires that every discovery disclosure, request, response or objection must be signed by the attorney of record or the client, if unrepresented.  The signature “certifies to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry” that the disclosure is complete and correct and that the request, response, or objection is consistent with the rules, is not improper, and is not unreasonable, unduly burdensome or expensive.

The court then turned to the Advisory Committee Notes for Rule 26(g) to discuss several “take away points” that “ought to, but unfortunately do not, regulate the way discovery is conducted.”  First, “the rule is intended to impose an ‘affirmative duty’ on counsel” to behave in a manner that is consistent with the “spirit and purposes” of the rules.  Such behavior, according to the court, would require counsel to identify and fulfill the legitimate needs of discovery while avoiding seeking discovery disproportionately costly or burdensome to what is at stake in the litigation.  Second, the rule is intended to curb abuse by requiring the imposition of sanctions for violations absent “substantial justification” and those sanctions “are intended to both penalize the noncompliant lawyer or unrepresented client, and to deter others from noncompliance.”  Third, the rule “aspires” to eliminate both discovery requests served without consideration of cost and objections proffered without factual basis.  As to the former and the common justification that broad requests are warranted where parties do not know enough to more narrowly tailor them, the court argued “this would not be so” if lawyers met before propounding discovery “and simply discussed what the amount in controversy is, and how much, what type, and in what sequence, discovery should be conducted so that its cost-to all parties-is proportional to what is at stake in the litigation.”  With regard to the latter, the court stated:

It would be difficult to dispute the notion that the very act of making such boilerplate objections is prima facie evidence of a Rule 26(g) violation, because if the lawyer had paused, made a reasonable inquiry, and discovered facts that demonstrated the burdensomeness or excessive cost of the discovery request, he or she should have disclosed them in the objection, as both Rule 33 and 34 responses must state objections with particularity, on pain of waiver.

Addressing the issue of cost, the court noted that “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.”

Repudiating the argument that “the cooperation that judges expect during discovery is unrealistic because it is at odds with the demands of the adversary system”, the court stated, “there is nothing inherent in [the system] that precludes cooperation between the parties and their attorneys…to achieve orderly and cost effective discovery of the competing facts on which the system depends.”  The court cited a respected professor who wrote that a lawyer’s loyalty is not to persons but to the “procedures and institutions” of government “upon which the successful functioning of our society depends.”  The court noted that lawyers who sought excessive discovery or proffered boiler plate objections were, “hindering the adjudication process, and making the task of the ‘deciding tribunal not easier, but more difficult’ and violating his or her duty of loyalty to the ‘procedures and institutions’ the adversary system is intended to serve.”

Turning back to the case at hand, the court found that by failing to offer particularized objections to plaintiffs’ discovery requests, defendants waived any legitimate objection they may have had.  The remaining discovery disputes, including the court’s question of whether plaintiffs’ requests were excessive or overly burdensome, were intended to be addressed by the court’s meet and confer order as outlined above.