Fed.R.Civ.P. 26(g) has been called the “stop and think” rule. The Rule is “designed to curb discovery abuse” and to “impose an ‘affirmative duty’ on counsel to behave responsibly during discovery….” The Hon. Paul W. Grimm, et al., “New Paradigm for Discovery Practice: Cooperation” 43 Md. Bar J. 26, 29-30 (Nov./Dec.2010), quoting Mancia v. Mayflower Textile Servs. Co, 253 F.R.D. 354 (D. Md. 2008).
Judge Grimm and his co-authors explain that Md. Rule 1-311, “when read in tandem with Rule 1-341, functions similarly to Fed. R. Civ. P. 26(g),” in some respects, but requires a higher standard in others. Id. at *30. That gap may be filled by inherent powers, and the article states: “Nonetheless, Maryland courts have it within their inherent authority to sanction parties and their attorneys for abusive practices that may not rise to the level of abuse warranting sanctions under Rules 1-311 and 1-341.” Id.
In short, the article suggests that the Maryland and Federal standard for striking an improper discovery request is the same; however, “[a]lthough the Maryland and federal rules yield parallel sanctions for filing a discovery request in bad faith or with an improper purpose, it would seem that the Maryland courts require a higher threshold–of subjective bad faith or lack of substantial justification–to sanction attorneys for discovery misconduct under the Rules.” [emphasis added]. However, Maryland courts also have common-law inherent powers that are not based on the Rules.
Rule 26(g) states:
Signing Disclosures and Discovery Requests, Responses, and Objections.
(1) Signature Required; Effect of Signature. Every disclosure under Rule 26(a)(1) or (a)(3) and every discovery request, response, or objection must be signed by at least one attorney of record in the attorney’s own name–or by the party personally, if unrepresented–and must state the signer’s address, e-mail address, and telephone number. By signing, an attorney or party certifies that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry:
(A) with respect to a disclosure, it is complete and correct as of the time it is made; and
(B) with respect to a discovery request, response, or objection, it is:
(i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law;
(ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and
(iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.
(2) Failure to Sign. Other parties have no duty to act on an unsigned disclosure, request, response, or objection until it is signed, and the court must strike it unless a signature is promptly supplied after the omission is called to the attorney’s or party’s attention.
(3) Sanction for Improper Certification. If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney’s fees, caused by the violation.
Md. Rule 1-311 addresses “signing of pleadings” and states:
(a) Requirement. Every pleading and paper of a party represented by an attorney shall be signed by at least one attorney who has been admitted to practice law in this State and who complies with Rule 1-312. Every pleading and paper of a party who is not represented by an attorney shall be signed by the party. Every pleading or paper filed shall contain (1) the signer’s address, telephone number, facsimile number, if any, and e-mail address, if any, and (2) if the pleading or paper is signed by an attorney pursuant to Rule 20-107, the attorney’s identifying Attorney Number registered with the Attorney Information System.
Committee note: The requirement that a pleading contain a facsimile number, if any, and e-mail address, if any, does not alter the filing or service rules or time periods triggered by the entry of a judgment. See Blundon v. Taylor, 364 Md. 1 (2001).
(b) Effect of Signature. The signature of an attorney on a pleading or paper constitutes a certification that the attorney has read the pleading or paper; that to the best of the attorney’s knowledge, information, and belief there is good ground to support it; and that it is not interposed for improper purpose or delay.
(c) Sanctions. If a pleading or paper is not signed as required (except inadvertent omission to sign, if promptly corrected) or is signed with intent to defeat the purpose of this Rule, it may be stricken and the action may proceed as though the pleading or paper had not been filed. For a wilful violation of this Rule, an attorney is subject to appropriate disciplinary action.
Source: This Rule is derived as follows:
Section (a) is derived from former Rules 302 a, 301 f, and the 1937 version of Fed. R. Civ. P. 11.
Section (b) is derived from former Rule 302 b and the 1937 version of Fed. R. Civ. P. 11.
Section (c) is derived from the 1937 version of Fed. R. Civ. P. 11.
Md. Rule 1-341(a) states:
Remedial Authority of Court. In any civil action, if the court finds that the conduct of any party in maintaining or defending any proceeding was in bad faith or without substantial justification, the court, on motion by an adverse party, may require the offending party or the attorney advising the conduct or both of them to pay to the adverse party the costs of the proceeding and the reasonable expenses, including reasonable attorneys’ fees, incurred by the adverse party in opposing it.
For other blogs comparing the Maryland and Federal Rules, please click on the “tag” at the top of this post “MD Rules v. Federal Rules of Civil Procedure.” There are approximately 15 prior blogs comparing the two systems.