For all the conflict lawyers generate between themselves, most can agree on one thing: document collection, review, and production, is not much fun.
Yet complex discovery, often involving the production of huge numbers of documents, is the norm in civil litigation today. And it is the lawyer’s responsibility to ensure the process is reliable and does not create prejudice to the opposing party. In fact, failing to properly oversee your client’s collection of records and to ensure that all relevant, responsive documents are preserved and produced, can result in sanctions and adverse jury instructions.
Federal Rule of Civil Procedure 26(g) requires that every discovery response and objection be signed by at least one attorney of record. Signing certifies that the attorney has undertaken a reasonable inquiry to ensure that disclosures are complete and correct, and that the client has provided all information and documents responsive to the discovery demand. See Fed. R. Civ. P. 26(g); see also Minn. R. Civ. P. 26.07.
Courts recognize this responsibility and take a dim view of lawyers who fall short of their obligations. See Claredi Corp. v. SeeBeyond Tech. Corp., 2010 WL 11579710, at *4 (E.D. Mo. Mar. 8, 2010) (awarding attorneys’ fees for grossly negligent discovery efforts) (report and recommendation adopted in part). And, while a client’s self-collection of documents is acceptable under limited circumstances “it is rarely a reasonable practice to be applied for the key custodians holding documents potentially central to the dispute.” See id. In particular this is because non-lawyer record custodians “cannot be trusted to run effective searches” for responsive documents. Nat’l Day Laborer Org. Network v. U.S. Immigration and Customs Enf’t Agency, 877 F. Supp. 2d 87, 108 (S.D.N.Y. 2012) (quotation marks omitted).
Because it is time-consuming to ensure that all of a client’s documents have been collected, attorneys often take short cuts or fail to follow up on obvious holes in what they receive from clients. And there is some logic to thinking that your client will know their own documents best, so why not create some efficiencies by having the client figure out what to produce? While that rationale may be appealing, discovery is at its core a lawyer-created, and lawyer-driven process requiring expertise and judgment that only comes from experience. As well-versed as your client may be in their own documents, they likely lack the ability to critically review their own information—especially embarrassing documents—that may be responsive to discovery requests.