IS A "LITIGATION HOLD" NOTICE TO YOUR CLIENT ALONE SUFFICIENT TO MEET YOUR OBLIGATIONS UNDER RULE 26(g) REQUIRING CERTIFICATION OF DISCOVERY RESPONSES?
Excerpt from Arkfeld on Electronic Discovery and Evidence treatise.
Michael R. Arkfeld, Electronic Discovery and Evidence, 2nd. Ed., Chapter 7, Court Procedural Rules and Case Law, § 7.04[K], Certification - Rule 26(g):
[K] Certification - Rule 26(g)
[a] Rule 26(g)
Signing of Disclosures, Discovery Requests, Responses, and Objections.
(1) Every disclosure made pursuant to subdivision (a)(1) or subdivision (a)(3) shall be signed by at least one attorney of record in the attorney’s individual name, whose address shall be stated. An unrepresented party shall sign the disclosure and state the party’s address. The signature of the attorney or party constitutes a certification that to the best of the signer’s knowledge, information, and belief, formed after a reasonable inquiry, the disclosure is complete and correct as of the time it is made. [Other text omitted]
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Rule 26(g)(2) requires an attorney to sign all discovery requests, responses and objections. By signing an attorney is certifying that to the “best of the signer’s knowledge, information, and belief, formed after a reasonable inquiry, the request, response, or objection is: . . . (B) not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. . . . (C) not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at stake in the litigation.” [Other text omitted]
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[c] Reported Cases
Cache La Poudre Feeds, LLC v. Land O'Lakes Farmland Feed, LLC, No. 04-00329, 2007 U.S. Dist. LEXIS 15277, at *56-57 (D. Colo. Mar.2, 2007). The Court found that the defendants failed to comply with Rule 26(g) in preserving ESI and stated:
While instituting a “litigation hold” may be an important first step in the discovery process, the obligation to conduct a reasonable search for responsive documents continues throughout the litigation. See Fed.R.Civ.P. 26(e)(2) (a party is under a duty seasonably to amend discovery responses “if the party learns that the response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing’). A “litigation hold,” without more, will not suffice to satisfy the ‘reasonable inquiry’ requirement in Rule 26(g)(2). Counsel retains an on-going responsibility to take appropriate measures to ensure that the client has provided all available information and documents which are responsive to discovery requests. Sexton v. United States, 2001 WL 649445 (M.D. Fla. 2001). As the Advisory Committee Notes make clear, “Rule 26(g) imposed an affirmative duty to engage in pretrial discovery in a responsible manner that is consistent with the spirit and purposes of Rules 26 through 37.” In this case, I find that Defendants failed to meet this standard.
(other cases omitted)