Counsel Not Required to Swear to Having Met Discovery Obligations

In Hall v. Trivest Partners L.P., 2024 WL 514015 (E.D. Mich. Dec. 17, 2024), the court rejected a demand that opposing counsel state under oath that counsel had properly conducted discovery.  The court wrote:

Lastly, Plaintiffs seek an order compelling Trivest Defendants to attest to having undertaken “proper efforts to ensure that any and all[1] sources of responsive information have been searched and related documents and/or ESI produced.” …. The Court will not require this attestation. Trivest Defendants’ counsel are aware of the obligation to undertake proper efforts under the Federal Rules of Civil Procedure, including their obligations under Fed. R. Civ. P. 11. Should it come to light that counsel did not comply with the rules, Plaintiffs would be within their right to move for sanctions.

It might have been preferable to add Fed.R.Civ.P. 26(g) (the “stop and think” rule regarding discovery) or Rule 37(a)(4) (evasive and incomplete discovery responses) to, or instead of, Rule 11.  The Advisory Committee Note to Rule 26 states: “Motions relating to discovery are governed by Rule 11. However, since a discovery request, response, or objection usually deals with more specific subject matter than motions or papers, the elements that must be certified in connection with the former are spelled out more completely. The signature is a certification of the elements set forth in Rule 26(g).”

Hall stands in contrast to another recent decision in which both disputing litigants were ordered to state under oath that they had produced all responsive documents.  Sometimes Discovery Disputes Do Not Bring Out the Best in Us (Apr. 10, 2024); Two Recent Decisions Imposing Sanctions for Discovery Failures (Dec. 16, 2024)(“To impress upon them the gravity of the claims they made in their pleadings, the court put both [plaintiff’s counsel] West and [new defense counsel] Goetzl under oath.”).

Like Hall, in Kyle Rayome v. ABT Electronics, 2024 WL 1435098 (N.D. Ill. 2024), the court wrote that it “would prefer this case not go to the dark place where attorneys on one side demand that the attorneys on the other side provide declarations in which they swear they are telling the truth about complying with their discovery obligations.”  See What Happens When Parties Fail to Negotiate a Privilege Log in Good Faith? (Apr. 8, 2024).

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[1] Requests for “Any and All” Documents Are Obsolete – Update (Jul.  6, 2024).