Hallucinated case citations are “old news.”  To paraphrase, “[I]t is no longer amateur hour.” (Feb. 12, 2021)(citation omitted).

Maryland has not been immune.  Maryland Fake Citation Case – Court Issues a Warning – Referral to Atty. Grievance Comm’n. (Nov. 2, 2025)(Court wrote that: “Implicit in the requirement that an attorney certify that there is good ground to support the contentions raised is that the attorney has read the primary cases on which the attorney relies for the argument submitted.”).

In Boyd, Mr. Boyd appealed from dismissal of his Complaint and denial of subsequent motions.  The Appellate Court of Maryland dismissed his appeal.

Mr. Boyd’s Complaint for divorce on the grounds of cruelty was denied after a trial in which he appeared pro se.  He was represented by counsel on appeal.  His appellate counsel filed a brief and purported “record extract.”  The latter was deemed inadequate.  There were also other procedural deficiencies—insufficient copies were filed—and the Court issued a show cause order to which there was no response.

The next event was a sua sponte order stating: “On December 2, 2025, we ordered Mr. Troy to show cause, in writing, why he should not be sanctioned and why he should not be referred to the Attorney Grievance Commission for citing to ‘hallucinated’ and unsubstantiated case law in Mr. Boyd’s brief.”  Id. at *2 (emphasis added).  The Court cited six irregularities and later added two more to that list.

The appeal was dismissed for failure to respond to the order to file sufficient paper copies and otherwise respond to the show cause orders. Id. at *2.  The Court added:

We briefly address the evident artificial intelligence issue that, while not dispositive here, warrants comment. It is unacceptable for counsel (or unrepresented parties, for that matter) to submit or attempt to rely on statements or authorities that are fabricated, hallucinated, or unsubstantiated, whether they are generated by artificial intelligence tools or “real” ones.  The signature of an attorney contained in a brief constitutes a certification that the attorney has read the brief, and that “to the best of the attorney’s knowledge, information, and belief there is good ground to support it[.]” Md. Rule 1-311(b). Thus, signing and filing a brief that contains hallucinated law may implicate the Maryland Attorneys’ Rules of Professional Conduct. Mezu v. Mezu, 267 Md. App. 354, 369, 374 (2025) (holding that counsel’s submission of brief with hallucinated case law implicated the Rules of Professional Conduct and referring case to the Attorney Grievance Commission). This conduct can also result in sanctions. Id. at 371-72 (declining to impose monetary sanctions when none were requested by opposing counsel).

Id. at *2 (emphasis added).

It is noteworthy that the Court relied on the certification requirement. The blog Does Maryland Have an Analog to Fed.R.Civ.P. 26(g)? (Dec. 23, 2022) discusses the Hon. Paul W. Grimm’s (ret.) article suggesting 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.

In Boyd, the Appellate Court also, in the alternative, reached the merits. Id. at *3.  It then concluded: “Despite being given multiple opportunities, Mr. Troy failed to file with this Court eight paper copies of Mr. Boyd’s brief and a record extract. See Md. Rules 20-404(b) and 20-406(a)(2). We, accordingly, exercise our discretion pursuant to Maryland Rule 8-602(c)(5) and dismiss the instant appeal.”

The Court wrote: “This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Maryland Rule 1-104(a)(2)(B).”

For reviews of recent books on Artificial Intelligence, see Book Review: Craig Ball, “The Leery Lawyer’s Guide to AI and LLMs in Trial Practice” (Jan. 16, 2026); Book Review: John Tredennick and William Webber, “Generative AI for Smart Discovery Professionals” (Jan. 15, 2026); Book Review: Jim Sullivan, “The Book on AI Doc Review” (Jan. 13, 2026); Book Review: Tom O’Connor, “Artificial Intelligence for the Rest of Us” (Jan. 12, 2026).

For additional information on A.I., click on the “TAG” named “Artificial Intelligence” in the drop down menu at the top of this blog. For example a recent blog discusses Artificial Intelligence in Maryland Courts (Aug. 24, 2025).

UPDATE: See Pamela Langham, U.S. District Court of Maryland Addresses Hallucinated Cases | Maryland State Bar Association (Jan. 7, 2026). In Lafferty v. Theiss, No. 1:2024cv02642 – Document 29 (D. Md. 2025), Ms. Langham wrote that: “Plaintiff’s counsel further represented that both counsel and the firm had taken concrete steps to prevent overreliance on AI in future pleadings. To avoid recurrence of the errors, the firm instituted several protocols. First, every quotation or parenthetical citation must now be substantiated by a PDF copy of the underlying judicial opinion, which is to be downloaded and thoroughly reviewed by the attorney responsible for the pleading. Additional measures include requiring each checker to independently verify all citations and quotations prior to filing, confirming the accuracy of citations through Shepardizing or KeyCite, retaining the verified authorities for potential court review, and mandating a secondary audit of all filings by another member of the firm to ensure citation accuracy.”

Ms. Langham reported that, in Neal et. al v. Frayer et. al., No. 8:2024cv00778 – Document 31 (D. Md. 2025): “The court noted that plaintiff’s counsel had faced similar errors in a separate case, Lafferty v. Theiss. Despite the mistakes and errors in plaintiff’s counsel’s response in the Neal case, the court decided not to issue a show cause order or impose sanctions, citing counsel’s prior assurances in the Lafferty case that corrective measures had been implemented at his firm to prevent future errors.”

Mindtickle echoes Golat v. Wisconsin State Court System, 2025 WL 2390556 (W.D. Wisc. Aug. 18, 2025), which involved a motion to compel that was not prompt, not ripe, and not complete.  See Half-Baked Motion to Compel Was Not Prompt, Not Ripe, Not Complete, and Not Likely to Succeed (Aug. 22, 2025). In Golat, the court wrote that promptness and lack of ripeness “[a]lthough… typically [are] contradictory concepts, they are not in this case.”

The Mindtickle court struck plaintiff Mindtickle’s parallel motions to compel against defendants Studio Enterprise and University of Savannah.

MINDTICKLE’S MOTIONS WERE UNRIPE

First, the motions were unripe. Both defendants had agreed to provide further discovery responses. Mindtickle admitted that, if they did, it would likely withdraw its motions. The court wrote:

So the only reason then that Plaintiff filed this discovery motion on November 26, 2025—the day before Thanksgiving—is because “the approaching discovery cutoff on January 12, 2026, and the Court’s closed motion schedule require immediate action.” … (emphasis added). In other words, Plaintiff was “compelled,” it says, to file this preemptive motion—when it did—not because there is a ripe dispute, but in case one arises “to ensure compliance with the Federal Rules of Civil Procedure” and the “Local Rules.” Otherwise, Plaintiff speculates, its “rights” might not be “safeguard[ed]” and the “integrity of the discovery process” may not be “preserve[d].”

Mindtickle wrote that one motion was “prophylactic” to ensure compliance with milestones and to “preserve the integrity of the discovery process.”

The Mindtickle court disagreed, writing: “Plaintiff’s understanding of discovery is exactly upside down. Everything about its argument would turn discovery on its head.”

MINDTICKLE’S MOTIONS WERE UNTIMELY

Second, the unripe motions were also untimely under the Scheduling Order.  Mindtickle got off to a slow start, filing its discovery only one month before the fact discovery cutoff. The court stated:

So even if the parties had a discovery dispute, there wouldn’t have been enough time to present a discovery motion because, as the district court foreshadowed, “any party seeking to file a discovery motion must usually initiate meet and confer discussions at least seven (7) weeks before the discovery cut-off.”

The court noted: “It’s all too apparent what happened next.”  Id. at *2.  The parties filed a stipulation extending the deadlines for five months: “The main professed reason for the extension request: ‘the parties [were] working to scheduling mediation and anticipate[d] it occurring in either December 2025 or January 2026.’… But the district court apparently saw through that obfuscation intended to mask the lack of diligence in discovery.”  Instead, it granted a three-month extension.

The court explained what happened next:

Predictably, just about one month later, Plaintiff filed the current motions to compel (on the day before Thanksgiving, no less)—disingenuously demanding “immediate action” to preserve the integrity of the discovery process, to ensure compliance with the federal and local rules of discovery, to safeguard its procedural rights, and so on, and so on. Not because there is a ripe discovery dispute; there probably isn’t one. But just in case, Plaintiff says. And not because Plaintiff or the parties were diligent in pursuing discovery since it opened no later than April 2025; actually, they are quite tardy by any measure. Instead, the reason for the professed urgency is mainly because of this court’s apparently unprecedented “closed motion schedule,” surprisingly blocking out Christmas eve (December 24) and New Year’s eve (January 31) from hearings. [emphasis added].

The court then described an inadequate conference of the parties and incomplete “discovery plan”, with an apparent note of sarcasm:

The false emergency couldn’t possibly be at all because of the parties’ patent failure to conduct a proper Rule 26(f) discovery planning conference in early April 2025. According to the parties’ joint Rule 26(f) report, the parties agreed only to “provide initial disclosures pursuant to the Federal Rules of Civil Procedure,” to “take fact discovery” from each other about their respective claims or defenses, “which may include written discovery and depositions” and possibly “expert discovery.” … Hardly the stuff of a substantive discovery plan. [emphasis added].

For more information on discovery plans, please see An “ESI Protocol” is Not a Rule 26(f) “Discovery Plan” (Nov. 24, 2025).

“ASTONISHING” FAILURE TO FOLLOW COURT PROCEDURES: Rule 26(g)

Third, the court wrote that “if the unripeness and untimeliness of Plaintiff’s motions weren’t enough, they violate the court’s individual discovery procedures. The parties claim—in a joint certification under Rule 26(g) and counsel’s professional and ethical obligations—that the discovery disputes here couldn’t be narrowed or eliminated just by complying with this court’s Standing Civil Discovery Order…. That’s astonishing. Consider what that standing order provides….” Id. at *2 (emphasis added).

The Mindtickle court quoted a number of provisions of its Standing Civil Discovery Order, including ¶11, which stated:

The parties act at their own peril if they agree to ‘pause’ discovery while awaiting decision on a motion or engaging in settlement discussions. Without a court order, the parties cannot expect to enforce any side agreements—even bilateral ones—about staying discovery (in favor of settlement talks or otherwise) if a dispute later arises requiring court intervention before the discovery cutoff.”

SCHEDULING ORDERS

It is not unusual for a missed milestone to have consequences. Missed Milestone:  “This rings the death knell for Plaintiffs’ motion….” (Dec. 10, 2025).  This is an application of the Cinderella principle: “Like Cinderella, the attorney in this case tripped on the electronic stairs at midnight, but his client lost more than a glass slipper.”  Tom Donlon, Silly Lawyer Tricks XXX (americanbar.org)(Mar. 14, 2023).

A Scheduling Order is, after all, an Order. Violating it can have consequences. A Scheduling Order is – – an Order; Sanctions Imposed Despite Consent Request to Modify (Nov. 30,, 2025).

Fed.R.Civ.P. 41(b) has also been used to dismiss a lawsuit for egregious failure to comply with the Federal Rules of Civil Procedure or a court order. Sua Sponte Dismissal Relying in Part on Fed.R.Civ.P. 41(b) (Mar. 15, 2023).

The “Rules of Procedure are the lawyer’s compass and serve to help him [or her] steer through the narrows of pleading, pass the rocks of default, around the shoals of limitation, and safely into the harbor of judgment. It is a reckless sailor, indeed, who puts to sea without a compass, and it is a reckless lawyer who fails to familiarize himself [or herself] with the Rules of Procedure before he [or she] files and tries a case.”  Colonial Carpets, Inc. v. Carpet Fair, Inc.,  36 Md. App. 583, 584, 374 A.2d 419, 420–21 (1977) (emphasis added).

As I noted in Better Late Than Never? Case Dismissed for Filing 16 Minutes After Midnight (Mar. 17, 2023), however, there are countervailing considerations.  Fed.R.Civ.P. 1 states that the Rules “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”

A Maryland Court  faced a rules-based discovery deadline and wrote:

We conclude this opinion with some general words of explanation and caution. Generally, the Maryland Rules will be applied literally because the satisfactory resolution of disputes through litigation is dependent upon the certainty and timeliness of the process. In many instances, the Rules themselves provide the framework for handling Rule violations, which often involve the exercise of discretion by a court. This is certainly true in the discovery area.

There have been instances, however, including several in reported cases, when a party did not bear the full effect of a Rule violation, especially when the violation was technical, was an excusable instance, not part of a pattern, not wilful, resulted in no prejudice to other parties, did not interfere with the orderly administration of the court’s docket, and the sanction was grossly disproportionate to the nature of the violation.

The point is that the Rules are designed to promote justice, and their literal application will generally do so. Violations will be excused, or a lesser sanction imposed, only in those rare instances in which a literal application, or a heavier sanction, denies justice. Litigation is a dispute resolution process, not a game. Ordinarily, a trial court’s exercise of discretion, including when it literally applies the Rules, will be accorded great deference and upheld.

….

With respect to various types of Rule violations, including timeliness, examples of the two sides of the spectrum are easy to state. For example, as courts move toward electronic filing, lateness may be measured in minutes, not days. If a response is filed 5 minutes late, absent prejudice, a pattern of conduct, wilful conduct, or other extenuating circumstance, one would not expect a motion for sanctions to be filed. If filed, one would expect it would be denied. If, on the other hand, a late response, in context, impacts other counsel’s abilities to represent their clients and to comply with existing orders and schedules, a motion is warranted, and one would expect it to result in appropriate relief. There is a sliding scale in between the two extremes. The facts, summarized at the beginning of this opinion, produced the result reached herein.

This opinion should not be interpreted as condoning the late filing of a response to a request for admissions or any other violation of the Rules. Balanced against the need for enforcement of the rules, however, is the dependence of litigants on the sound exercise of discretion, when permitted by the Rules, to prevent injustice resulting from an insubstantial technicality.

Gonzales v. Boas, 162 Md. App. 344, 363–65, 874 A.2d 491, 502–03 (2005), cert. denied, 388 Md. 405, 879 A.2d 1086 (2005)(emphasis added).

For more on Scheduling Orders, see:

• Defendants’ Violation of Scheduling Order Did Not Support Exclusionary Sanctions (Aug. 23, 2025);
• Sanctions for Failure to Comply With a Scheduling Order That Set Discovery Milestones(May 27, 2025);
• Scheduling Orders Are Mandatory; Vital to Caseload Management; and, Enforced Even Where Parties Got Themselves Into a “Pickle” by Dilatory Efforts to Cooperate (Oct. 10, 2024).

See generally:

• Better Late Than Never? Case Dismissed for Filing 16 Minutes After Midnight (Mar. 17, 2023);
• Another Cinderella Situation –Motion Denied as Untimely? (May 31, 2024);
• Plaintiffs Raised This Issue With the Court Too Late (Oct. 7, 2024);
• Dilatory Objections to Corporate Designee Topics Were Too Late; “Blanket” De-Designation Request Was Denied (Oct. 22, 2024);
• Too Busy to Respond to Discovery = Waiver of Objections & Sanctions (Nov. 1, 2024).

Some that may be worth reading are:

• An “ESI Protocol” is Not a Rule 26(f) “Discovery Plan”
• What is the Purpose of an ESI Protocol? Court Addresses Seven Key Issues
• Artificial Intelligence in Maryland Courts
• “Just When You Thought It Was Safe to Go Back Into the Water,” A.I. Hallucinates Metadata
• Order Prohibiting Upload of Confidential Discovery Documents to Artificial Intelligence (“AI”)
• No Duty to Respond to Preservation Letter
• Another Approach to Drafting and Discovery of Litigation Hold Notices
• “Meet and Confer” Was Transcribed
• The “Best Time” to File a Spoliation Motion
• When Must a Motion to Compel Be Filed? – Part 4
• No Privilege Log is Necessary in Limited Circumstances When Discovery Requests Are Overbroad
• Hit Reports – Part IV – Request for “Nonresponsiveness” Log Denied
• Age-old Habit of “Subject to” Objections Waives Them; So Does “To the Extent” Objection
• Guidelines for “Discovery on Discovery”
• Did the 2015 Deletion of “Not Reasonably Calculated” From Rule 26(b)(1) Change the Scope of Discovery?
• R.Civ.P. 26(g) Was Violated by Permitting Client Searches With Minimal Oversight by Counsel
• Document Correlation
• Production of Defendants’ Organizational Chart is Ordered
• Geofencing, Geotargeting, and Geo-blocking, in Civil Litigation, Information Governance, and Regulation
• Order for Phased Discovery
• Standard for Court-Ordered Forensic Examinations – When Does Misconduct “Cross the Rubicon”?
• Golden Oldie #5 – Fed.R.Civ.P. 26(g) and the “Discovery Budget”
• “Judges are not like pigs, hunting for truffles buried in the record”

One area that may be of interest has been coverage of the discovery issues in Ms. Blake Lively’s lawsuit against the “Wayfarer Parties” and Mr. Justin Baldoni.

A few of those blogs are:

• How Much Attention Does a Big Case Deserve?
• Decision on 557 Requests for Admission in Blake Lively v. Wayfarer Parties/Justin Baldoni
• What Connects “Popcorned Planet” and Ms. Blake Lively?
• Another Discovery Decision in Blake Lively v. Wayfarer Parties/Justin Baldoni
• “Birth Video” Discovery Dispute in Lively v. Wayfarer Studios/Baldoni
• Listing a Document on a Privilege Log Concedes That it is Relevant for Discovery

My most important blogs were not focused on ESI.  Some of them are:

• Another Judicial Impeachment Effort?  What Would Justice Rehnquist Say?
• Protecting the Judiciary – Analysis of Judicial Impeachment
• Protecting the Judiciary – Again
• Protecting the Judiciary Against This Ill-Advised “Impeachathon”
• Protecting the Judiciary –  Article of Impeachment:  “It’s Déjà vu All Over Again”
• “Pizzas Sent to Judges’ Homes in Name of Judge’s Murdered Son”
• Commentary: “Ex-Judges See ‘Grave Threat in Trump Official’s ‘War’ Talk” And “Senate Committee to Investigate Impeachment of Judges”
• Families of Judges Come Under Attack
• “DOJ’s No. 2 Official Asks Lawyers to Join ‘War’ Against Judges”
• Lawsuit Against Federal Judges Dismissed – “[T]hese are not normal times.”
• In Memory of Kaylee Walstad
• Book Review: Elie Honig, “When You Come at the King”
• Congratulations to Phil Favro on the Opening Favro Law PLLC

In the most recent decisions, the Merck Defendants filed a three-part motion for sanctions against Plaintiff Nina Sizoyan Li. The motion requested sanctions for alleged failure to preserve ESI and non-ESI materials.  The former was grounded on Fed.R.Civ.P. 37.  The non-ESI sanctions were sought under the common-law inherent power of the court.  The Merck Defendants also sought Rule 26 sanctions against Ms. Li’s attorney.  The Merck Defendants carried their burden only on the Rule 26 issue.

INHERENT POWER SANCTIONS

The Merck Defendants’ inherent powers motion was denied primarily because the court held that the paper documents were destroyed before the duty to preserve was triggered.

The court wrote that the triggering event was “when Plaintiff anticipated litigation….” Id. at *1.  “Plaintiff says she did not contemplate suing Merck until she was fired in March 2023 and escorted out of the building by security.” Id. The court agreed.

Previously, the court wrote that Ms. Li “had an HR dispute within Merck, but there is no indication she was thinking of suing the company.”  Id. Her daughter texted her a link to a lawyer referral service because her mother told her she was struggling.  Plaintiff “testified that she consulted with a lawyer in December 2022 because ‘I just wanted to find out why I was treated the way I’m being treated, whether it’s legal or illegal. I just want to know about that.’”  Id. at *2.  She said that she wanted to “better understand” her “legal rights.”  Id. However, she “continued to do everything possible to work within Merck’s system to address the retaliation I continued to face, including further interviews with the Office of Ethics, an extended interview with HR, and a detailed letter to Merck MRL’s Vice President, George Addona, describing the ongoing retaliation and requesting his intervention,” and Ms. Li declined offers of legal representation. Id.

The court wrote:

Merck points to a text message exchange between Plaintiff and Liangsu Wang, her former manager, on December 14, 2022. Plaintiff said: “we talked with two lawyers, both of them want to take my case move forward.” But then she added: “Yeah, the strategy will be settled down with the company, which is the same as what I’m doing by myself. But I think with the lawyer, I have more options.” …. It’s not 100% clear what that means, but the better interpretation is the one that is consistent with Plaintiff’s and Chen’s testimony that Plaintiff consulted with an attorney in connection with her HR issue at work, which she was handling through Merck’s internal processes. That was a perfectly good reason to consult with a lawyer, and it doesn’t mean she was considering filing a lawsuit. For a highly skilled employee like Plaintiff to sue a current employer is something many people in Plaintiff’s position would find unpalatable, and there is no indication she was contemplating suing Merck until she was fired.

Merck points out that even before December 2022, Plaintiff had been watching YouTube videos “to understand retaliation and discrimination mostly from – trying to understand her legal rights.” …. Merck also points to several instances in which Plaintiff took screen shots or saved documents related to her HR dispute…. But this behavior is consistent with having a significant HR dispute at work, and it is clear that she had one.

The court did not disagree with the Merck Defendants’ “broad propositions of law that the duty to preserve does not arise only when someone has made a final decision to sue, that the duty to preserve can arise long before a lawyer is actually hired, and so on.” Id. at *2.

However, the court explained that:

[O]n the facts of this case, there is no indication that Plaintiff was contemplating suing Merck until she was fired. Please bear in mind that one of the allegedly discriminatory and retaliatory acts she is suing over is her termination, which of course did not happen until she was fired…. On that day her efforts to work within Merck’s system came to an end and litigation became her only remedy. It is not strange that someone would begin contemplating a lawsuit when that became her only option.

Id. at *2. The court summarized:

There is no mention of litigation or potential litigation by Plaintiff before she was fired, not even in texts or emails with colleagues or family members. She turned down legal representation she was offered. It doesn’t seem like she was contemplating a lawsuit until she was fired. Accordingly, the Court finds that Plaintiff’s duty to preserve arose when she was terminated.

This mooted two of the Merck Defendants’ inherent power arguments and the court found the third to be unimportant, writing: “Even if Plaintiff threw out the printed emails that Shen mailed her in violation of her duty to preserve, Merck was not deprived of any documents or any relevant information. There would therefore be no basis for sanctions.” Id. at *4.

THE FED.R.CIV.P. 37(e) MOTION

“The Court has already found that Plaintiff’s document production was ‘a complete mess.’” Id. at *5.  It explained that her counsel “handed off document collection to their client” and documents were not properly collected. Id.  The court previously had ordered “Plaintiff to redo her document collection and production. Counsel must retain a document vendor to collect Plaintiff’s documents in the normal way that documents are collected for litigation, and counsel must review and produce them.”  Id.

The court now explained that:

It appears that some combination of Merck’s subpoenas to Plaintiff’s husband, Hainan Chen, and her daughter; the Court’s December 10, 2024 order…; and this spoliation motion caused Plaintiff’s counsel to discover Plaintiff had unproduced ESI…. The question the Court faces now, having already ordered Plaintiff to redo her document collection and production, is whether the Court should do something more.

Id. at *5.  However: “The Court thinks that on the current record, Merck cannot show there is ESI that has been lost and that cannot be restored or replaced through additional discovery.”  Id.

The court wrote: “There was also the problem that Merck’s motion never addressed whether the missing documents, if they were deleted, cannot be restored or replaced through additional discovery. Communications, after all, are with other people. And it sounds like the other people were either at Merck or Merck subpoenaed them….  As matters stand now, Merck has not identified any ESI that is both ‘lost’ from Plaintiff and that ‘cannot be restored or replaced through additional discovery,’ meaning the other people she was communicating with. Merck does not present any coherent argument of the form ‘Plaintiff has lost A, B and C, and those items cannot be restored or replaced through additional discovery because of reasons X, Y and Z.” Merck is therefore entitled to no remedies under Rule 37(e).’”  Id. at *5-6.

The court emphasized the inadequacy of Ms. Li’s efforts, but noted that it was not asked to compel further production or for monetary sanctions under its inherent powers. Id. at *6.

FED.R.CIV.P. 26 SANCTIONS AGAINST PLAINTIFF’S ATTORNEY

The court wrote: “Here, Merck argues that Plaintiff’s counsel’s signing Plaintiff’s October 21, 2024 RFP responses did not comply with Rule 26 because of the response to RFP 76. It requested all documents and communications between Plaintiff and her daughter relating to the case, and Plaintiff responded: ‘Plaintiff responds that she is unable to comply because despite a diligent search and reasonable inquiry responsive documents either never existed or were thrown away (as with the edits Ms. Chen suggested to Plaintiff’s pretermination communications with Defendants).’”  Id. at *6.

The court wrote:

Everyone agrees that discovery response was false. And Plaintiff’s counsel knew it was false by at least the beginning of December…. Plaintiff’s counsel say they relied on their client, who had forgotten about the electronic communications with her daughter….

Id. at *6 (emphasis added).  The court added: “But there are two problems with that excuse.”

First, it doesn’t work because Rule 26 doesn’t let counsel hand off responsibility for document collection to the client and then just hope for the best….  Counsel was not entitled to rely on her client’s memory of what documents existed. Counsel was required to ensure that her client’s search for responsive documents was diligent, and a diligent search would have turned up the many documents responsive to RFP 76.[1]

Id. at *6.

And that brings us to the second problem. Counsel say they did not hand off all responsibility to Plaintiff to search for documents. They say that they did text extractions from her phone on multiple occasions starting in January 2024, and they logged into her personal email accounts and extracted responsive documents…. But the search terms Plaintiff’s counsel say they used to find text messages and emails responsive to RFP 76…, look great. If Plaintiff’s counsel ran the search they claim they did, they would of course have located responsive communications with Plaintiff’s daughter. This makes it even more indefensible to rely on Plaintiff’s memory of what documents existed in responding to the RFP.

Id. at *7 (emphasis added).  The court imposed a monetary sanction under Rule 26(g)(3).

Thank you to Doug Austin for his earlier blog on this decision, D. Austin, Duty to Preserve Arose When Plaintiff was Terminated, Court Rules (Aug. 15, 2025).

_____

[1] See “Self-Collection” May Be Reasonable Using Ralph Losey’s Dual-Protection System (Jan. 19, 2024)

To satisfy the requirements of Rule 26(g)(1) and comply with counsel’s ethical obligations as an officer of the Court, counsel must be actively involved in searching and producing discovery to Plaintiff.

Rule 26(g) explains the meaning of counsel’s signature on discovery responses.  The 1983 Advisory Committee Note to Rule 26(g) states: “The subdivision provides a deterrent to both excessive discovery and evasion by imposing a certification requirement that obliges each attorney to stop and think about the legitimacy of a discovery request, a response thereto, or an objection.”

Plaintiff, Mr. Grullon, filed a motion to compel against defendants, Messrs. Lewis and Zappala.  As one part of that motion, Mr. Grullon alleged that defense counsel has “allow[ed] their clients to be the judges of what is relevant and responsive.”  Mr. Grullon argued that this “abdication of counsel’s discovery obligations” has led to the withholding of documents “most critical” to the case.  Id. at *1.

First, the court analyzed Rule 26(g), writing: “Counsel has an obligation to ensure the completeness and accuracy of the information produced to Plaintiff.”  It quoted Rule 26(g)(1), writing:  “By signing a discovery response, an attorney certifies that the response is ‘complete and correct’ to the best of the attorney’s ‘knowledge, information, and belief formed after a reasonable inquiry.’” [emphasis in court’s decision]. The court wrote that there is an “obligation on counsel to monitor compliance….”

Second, the court found a violation of the rule, writing:

Under the circumstances, Defendants’ counsel has not performed an objectively reasonable inquiry under Rule 26(g)(1). The parties provided deposition testimony indicating that Lewis and Zappala have been conducting searches of their devices and accounts with minimal, if any, oversight by their counsel….  It is unreasonable to assume that Defendants themselves are conducting a reasonable search without counsel’s involvement, especially considering that one Defendant has been a minor for much of the litigation. [emphasis added].

The court cited several supporting authorities[1] for the general proposition that: “It is not appropriate to take a client’s self-collection of documents, assume it is complete, and not take steps to determine whether significant gaps exist.” Id. at *1.

Ralph Losey, Esq., has long suggested a better approach. See “Self-Collection” May Be Reasonable Using Ralph Losey’s Dual-Protection System (Jan. 19, 2024); Unsupervised Self-Collection Predictably Led to Problems (Jan. 2, 2021); Rule 26(g) Sanctions for Failure to Supervise Document Collection and Review (Nov. 27, 2020); Self-Identification and Self-Preservation: A Fool for a Client? (May 26, 2011); Does Maryland Have an Analog to Fed.R.Civ.P. 26(g)? (Dec. 23, 2022).

UPDATE: See Doug Austin, To Self Collect or Forensically Collect? Here is the Answer (eDiscovery Today Sep. 17, 2025).

____

[1] The Grullon court cited: “Herman v. City of New York, 334 F.R.D. 377, 386 (E.D.N.Y. 2020) (‘It is not appropriate to take a client’s self-collection of documents, assume it is complete, and not take steps to determine whether significant gaps exist.’); Thomas v. City of New York, 336 F.R.D. 1, 5 (E.D.N.Y. 2020) (granting a motion to compel and questioning why defendants’ counsel ‘chose not to review’ document production, instead ‘relying on their clients’ statements that these chats do not contain pertinent or relevant information’); Acon v. Long Island Gay & Lesbian Youth, Inc., No. 21-CV-4642 (WFK)(CLP), 2023 WL 12073648, at *2 n.6 (E.D.N.Y. July 7, 2023) (‘[P]arties themselves should not adjudicate what is or is not relevant for discovery.”).”

This blog addresses a methodology designed by Ralph Losey, Esq., through which self-collection may be defensible.  At bottom, Ralph[1] suggested that first, a comprehensive backup copy be made.  Then, a custodian may self collect, if given instructions about what and how to collect, under counsel’s supervision.  Finally, depending on proportionality, there may be review by counsel of the backup copy.

The self-collection problem was explained by Daniell K. Newman in Attorney Oversight in Electronically Stored Information Collection (natlawreview.com)(Jan. 3, 2024):

“In litigation, allowing a client to handle the process of collecting its electronic discovery without adequate attorney oversight of quality control validation can lead to serious trouble for all concerned….  The client … may reasonably believe it knows best where relevant discovery is stored and that persons with direct involvement in the creation of the electronic documents or communications at issue are best positioned to locate and collect that material. And the client may approach the task with the best of intentions….  [However, to] be defensible in court, the ESI collection process must be overseen and validated by someone familiar with the minimum standards the law requires.”

Mr. Newman cited Hedgeye Risk Mgmt., LLC v. Dale, No. 21-CV-3687 (S.D.N.Y. July 26, 2023), and DR Distributors, LLC v. 21 Century Smoking, Inc., No. 12 CV 50324, (N.D. Ill. Oct. 6, 2022), in support of his conclusion that: “Counsel must not blindly accept a client’s representations about the diligence and completeness of his or her collection efforts. Self-collection without monitoring and verification is a bad idea and a recipe for trouble.”

Unsupervised self-collection has long been criticized.  For example, in Cache La Poudre Feeds, LLC v. Land O’Lakes, Inc., 244 F.R.D. 614, 629-30 (D. Col. 2007), “Land O’Lakes directed employees to produce all relevant information, and then relied upon those same employees to exercise their discretion in determining what specific information to save,” however, “Land O’Lakes’ General Counsel took no independent action to verify the completeness of the employees’ document production,” resulting in spoliation. The Cache La Poudre court stated that lay employees do not have sufficient knowledge to make relevancy determinations and noted that they may have an incentive to fail to produce information.

I described additional self-collection cases about a decade ago in  Self-Identification and Self-Preservation: A Fool for a Client? (May 26, 2011), and again a few years ago, in Unsupervised Self-Collection Predictably Led to Problems (Jan. 2, 2021)(citing Equal Employment Opportunity Comm’n. v M1 5100 Corp, 2020 WL 3581372 (S.D. Fl. July 2, 2020)).

Appropriate self-collection may have advantages.  The “employees, not attorneys, were more likely to know what documents were relevant to a discovery request and conduct effective searches to find them.”  See What’s Happening? Self-Collection Amounting to No Collection? (modeone.io)(Jan. 5, 2024), citing Maker’s Mark Distiller, Inc. v. Spalding Grp., Inc., 2021 WL 2018880 (W.D. Ky. 2021).

Self-collection also presents known risks.  However, proportionality should always be a consideration in all aspects of e-discovery.  And, as Mr. Newman correctly points out, “adequate attorney oversight of quality control” may make self-collection reasonable.

The more important question is how to provide that oversight.

The Advisory Committee notes to Fed.R.Civ.P. 26 state:

The duty to make a “reasonable inquiry” is satisfied if the investigation undertaken by the attorney and the conclusions drawn therefrom are reasonable under the circumstances. It is an objective standard similar to the one imposed by Rule 11. [citation omitted]. In making the inquiry, the attorney may rely on assertions by the client and on communications with other counsel in the case as long as that reliance is appropriate under the circumstances. Ultimately, what is reasonable is a matter for the court to decide on the totality of the circumstances.

Rule 26(g) does not require the signing attorney to certify the truthfulness of the client’s factual responses to a discovery request. Rather, the signature certifies that the lawyer has made a reasonable effort to assure that the client has provided all the information and documents available to him that are responsive to the discovery demand. Thus, the lawyer’s certification under Rule 26(g) should be distinguished from other signature requirements in the rules, such as those in Rules 30(e) and 33.

See 1983 Advisory Committee Note to Subdivision (g) of Fed.R.Civ.P. 26 (emphasis added).

In my 2011 blog, I discussed an approach developed by Ralph Losey in Another “Fox Guarding the Hen House” Case Shows the Dangers of Self-Collection | e-Discovery Team to reach that goal.

Ralph described a two-tier system that provides substantial additional protection where self-collection is proportionate and may be appropriate.  He wrote:

Many try to mitigate these [self-collection] risks by following a two-fold collection system, one that adds an extra level of protection to self-collection. This is appropriate in cases that are large enough to warrant the additional expenses involved. In such dual protection systems the key custodians still search, identify, and self-collect what they think are relevant emails, but, as a fail safe, IT also collects all of the key custodians’ emails. Then attorneys search and identify relevant documents from this full, uncensored, unfiltered, collection. This double effort guards against the intentional and unintentional mistakes that can sometimes arise in self-collection. [emphasis added].

After discussion of Green v. Blitz U.S.A., Inc., 2011 WL 806011 (E.D. Tex. Mar. 1, 2011), Ralph concluded:

Unlike some commentators, I think that reliance on self-collection alone is sometimes justified. It depends on the case and proportionality principles. It also depends on whether legal counsel is supervising the effort….  Without legal counsel guard dog to growl and bark, the fox can easily sneak around in the dark. [emphasis in original].

Certainly, appointing a person with a personal stake to perform unsupervised self-collection may be imprudent.  However, Ralph wrote that:

In the right case, where you have no reason to suspect a fox is in your midst, and you have a legal watchdog around, there may be no need to incur the additional expense of full IT collection and attorney review. This kind of fail safe, double review method is expensive. It is a good practice to be sure, and may be required in large cases, but it should not be an automatic requirement in all cases.

Ralph applied his two-step method with attorney review to large-value cases.  However, in low-dollar cases, one could envision self-collection as the primary means of collection, review, and production – –  with a prior comprehensive collection by someone else that is available as a back-up if the initial methodology is successfully challenged.  One additional safeguard, especially in a low-dollar case, could be spot checks by counsel, instead of full attorney review.  See Self-Identification and Self-Preservation: A Fool for a Client?

While there might be some delay in the event of a “re-do,” the risk of spoliation could be markedly reduced by the back-up copy.  To play off Ralph’s analogy, even if the collecting employee was a nefarious fox, the chicken coop was preserved by I.T., and, except for some delay, there is no harm, no foul (or fowl?).

Of course, even with a dual collection, the custodial collector must be given guidance and parameters by trial counsel.  As far back as 2007, the Sedona Conference wrote that: “Self-collections by custodians may give rise to questions regarding the accuracy of collections if directions and oversight are poor or non-existent.” The Sedona Principles: Second Edition, Best Practices Recommendations & Principles for Addressing Electronic Document Production, (June 2007), 58 (emphasis added).  According to The Sedona Guidelines:

“Under its policy, a potential producing party enlists the assistance of its employees or agents who are identified as possibly having relevant information by informing them of the nature of the controversy and the time frame involved, and by providing them with a method of accumulating and updating (where disputes are ongoing) copies of the relevant information. The appropriate  individuals are instructed to preserve relevant information for the duration of the controversy and steps are established to follow up with the identified individuals and secure the information. The organization has likely fulfilled its obligations.”

“Best Practices Guidelines & Commentary for Managing Information & Records in the Electronic Age,” (2d ed. 2007), 49 (emphasis added).

I suggest that:

[One] key factor is to precisely define what “self-[collection]” means. “A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used,” Towne v. Eisner, 245 U.S. 418, 425 (1918).  Self-preservation may include no, or varying degrees of, involvement by counsel.  It could be performed by a self-described “computer illiterate,” as in Green v. Blitz, or by sophisticated personnel. It could center on a case involving allegations of dishonesty or one presenting a commercial argument over virtually undisputed facts among people of unquestioned integrity.  And, the person conducting the search might, or might not be, the target of the allegations of wrong-doing.

See Self-Identification and Self-Preservation: A Fool for a Client?

Combined with a comprehensive back-up and thorough written instructions to the collector, in appropriate cases, custodian self-collection may be a reasonable and proportionate solution.

For example, if information on a custodian’s iPhone is at issue, counsel could supervise Craig Ball’s Custodian-Directed Preservation of iPhone Content: Simple. Scalable. Proportional. | Ball in your Court (craigball.net)(Jul. 16, 2017).  Craig describes “one simple, scalable and defensible method to preserve iPhone content.”[2]  Counsel or the I.T. department could take possession of the back-up copy.  Then, with instructions and guidance from counsel, the custodian could select what is responsive to discovery.  Counsel might spot check as a validation.  If the opposing party makes a prima facie showing of a failure to produce responsive information, the back-up could then be searched.

Similarly, a custodian’s email could be exported to a PST file, the PST safeguarded, and then self-collection from the “live” file, with clear parameters from counsel, may be reasonable.  In the event of a biased or nefarious collection, the PST file provides a safeguard.

I suggest that proportionality, reasonable precautions, and the needs of the case are key considerations in this context. See Self-Identification and Self-Preservation: A Fool for a Client?

And, of course, cooperation,[3] transparency, and an agreement with opposing counsel (if possible) is always the safest course of action.  I have never seen a case in which counsel made and performed an agreement but was later sanctioned.

This blog, although slightly edited later was initially posted on  Electronic Discovery Reference Model and  JD Supra.

UPDATE:  Zagg Inc. v. Ichilevici, No. 1:23-cv-20304 (S.D. Fla. Jan. 30, 2024), as quoted in the EDRM and eDiscovery Today’s presentation titled “Important eDiscovery Case Law Decisions for July 2024″: “The relevant rules and case law establish that an attorney has a duty and obligation to have knowledge of, supervise, or counsel the client’s discovery search, collection, and production. It is clear to the Court that an attorney cannot abandon his professional and ethical duties imposed by the applicable rules and case law and permit an interested party or person to ‘self-collect’ discovery without any attorney advice, supervision, or knowledge of the process utilized…Clearly, counsel for DVG should have supervised its clients in the collection of ESI. Mr. Ichilevici is both an individual defendant and the representative of DVG, bolstering the need for a thorough document search by DVG’s counsel. As such, DVG’s counsel is ordered to review DVG and Mr. Ichilevici’s records and produce any documents responsive to ZAGG’s discovery requests, which were made prior to the close of discovery. Should counsel for DVG discover any non-produced responsive documents, the parties are directed to confer and set a reasonable timeline for that production.”

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[1] Together with Jason Baron, Ralph and I co-edited “Perspectives on Predictive Coding” (Amer. Bar Ass’n. 2016).

[2] Craig points out that certain information, such as email, iTunes, Apple Pay, and other information won’t be backed up.

[3] Historical ESI Highlights – Part VIII – Cooperation and The Cooperation Proclamation.

A “discovery plan” includes all aspects of an ESI Protocol; however, an ESI Protocol may not suffice as a “discovery plan.”

Some (like me) favor ESI Protocols and suggest that they are almost-always necessary or appropriate.  Others wish to banish them, viewing them as costly, delaying devices that lead to incessant negotiations with little accomplished.

Some (like me) suggest that they should be incorporated into a court order.  Others view that as the first step down the road to sanctions.

Some say that, once signed, they are carved in stone.  Others (like me) view them as interlocutory orders or agreements that are subject to revision for cause or good cause.[1]

Some say that they should be bare bones and address only a limited list of topics.  Others suggest a comprehensive list that incorporates every potential bump in the electronic road that is described in any judicial opinion.  Most stake out a middle ground and suggest tailoring the protocol.

Many (like me) agree with Kelly Twigger that: “An ESI protocol is your roadmap to handling ESI issues in any litigation. Like any trip you take, the more planning you do, the less speed bumps you hit….”  Kelly Twigger, ESI Protocols Part I: Planning for eDiscovery—When, How and Why | eDiscovery Assistant.

Excellent resources have been published by Craig Ball, The Annotated ESI Protocol | Ball in your Court (craigball.net), and Kelly Twigger, 2023 ESI Protocol Practical Guide-Download | eDiscovery Assistant and ESI Protocols Part X: Issues in Production from Collaboration Platforms | eDiscovery Assistant.  See also J. Greer,  ESI Discovery Protocol – What To Include (digitalwarroom.com); D. Austin, Proposed Language for Hyperlinked Files in ESI Protocols (ediscoverytoday.com); Model eDiscovery Protocol (uscourts.gov)

I agree that a tailored, written agreement – – an “ESI Protocol” – – is almost always a good idea and these are really good frameworks.  However, depending on the content, if there has been a Rule 26(f) conference, more may be needed.

 WHILE “ESI PROTOCOLS” ARE NOT MENTIONED IN THE RULES,

A “DISCOVERY PLAN” IS DEFINED & MANDATED

In “Through the Looking Glass,” Lewis Carroll wrote: “When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’”

I think that part of the confusion in defining an ESI Protocol stems from the fact that “ESI Protocols” are not mentioned in the Federal Rules of Civil Procedure.

In fact, I asked ESI-guru Tom O’Connor of Gulf Coast Legal Technology Center if he knew where the term “ESI Protocol” came from.  Tom quoted the 2006 Advisory Committee Note to Rule 26: “Parties may attempt to minimize these costs and delays by agreeing to protocols that minimize the risk of waiver.”  [emphasis added].

Thanks to Tom, and that is a great find.  However, those notes are not binding,[2] and the Rule – – Fed.R.Civ.P. 26(f) – – does not call for an ESI Protocol.

Rule 26(f)(2) states in part: “In conferring, the parties must… develop a proposed discovery plan.” [emphasis added].

After a Rule 26(f) conference of the parties, the Rule mandates submitting a “written report outlining the plan.”  Subsection (f)(3) lists the mandatory contents of that “discovery plan” and the six subsections go beyond – perhaps far beyond – an ESI “Protocol.”[3]

The Committee Note to the 1993 Amendment to Rule 16(b) states: “The report from the attorneys concerning their meeting and proposed discovery plan, as required by revised Rule 26(f), should be submitted to the court before the scheduling order is entered.” [emphasis added].

The Rule 26(f) “report” triggers a scheduling order under Rule 16(b)(1)(a).  There is no mention of a “protocol” in either Rule.[4]

In short: “Rule 26(f) directs the parties to develop a discovery plan during the conference and submit it to the court before the Rule 16(b) scheduling order is due.”  Wright and Miller, 8A Fed. Prac. & Proc. Civ. § 2051.1 (3d ed.)(emphasis added).

THERE IS AMPLE AUTHORITY SUPPORTING THE USE OF “ESI PROTOCOLS”

There are some indicators that ESI issues should be contained in the discovery plan.  The 2006 GAP Report states: “When a case involves discovery of electronically stored information, the issues to be addressed during the Rule 26(f) conference depend on the nature and extent of the contemplated discovery and of the parties’ information systems. It may be important for the parties to discuss those systems, and accordingly important for counsel to become familiar with those systems before the conference. With that information, the parties can develop a discovery plan that takes into account the capabilities of their computer systems.” [emphasis added].  The GAP Report to the 2005 Amendment states: “Rule 26(f) is also amended to direct the parties to discuss any issues regarding preservation of discoverable information during their conference as they develop a discovery plan.”  [emphasis added].

Please don’t get me wrong.  I am not suggesting that “ESI Protocols” are unauthorized.  Clearly, there is more than ample authority supporting the use of ESI Protocols, and the horse is long out of the barn.

For example, in a December 7, 2023, E-Discovery Day webinar titled “ESI Protocols: What to Include and What Not to Include,” The Hon. Allison Goddard, Kelly Twigger, Esq., and Maria Salacuse, Esq., pointed to Rules 1, 16, 26(f), and 29, and their accompanying notes, as sources authorizing an ESI Protocol.  They are correct.

And, a substantial body of decisional law approves of the use of these protocols.  A Westlaw search for “ESI Protocol” in the “All Federal” database returns 598 cases.  The oldest reference is from 2007.[5]  The search also returns 234 secondary sources. One of the earliest is also from 2007, stating:  “Do you dread litigation knowing that before discovery begins you must sit down with opposing counsel and attempt to agree on the ESI protocol under FRCP 26(f)?”[6]  In the “All States” database, the same search returned 14 cases, dating back a decade.[7]

Additionally, there are other names for similar agreements.  Some people call them “ESI Agreements,” “ESI Stipulations,” or “Stipulated Protocols.”  Judge Goddard’s Rule 26(f) Conference Checklist uses the term “ESI Order.”  A search for that term in Westlaw’s “All Federal” database returns 232 cases.

And, there are more specialized agreements that may differ in scope and content from an “ESI Protocol,” such as a “Preservation Protocol,”  “Production Protocol,” “Document Exchange Protocol,” “TAR Protocol,” “Search Protocol,” or, “Discovery Protocol.”  The term “forensic protocol” was used in MMR Constructors, Inc. v. JB Grp. of LA, LLC, 2022 WL 5310816, at *1 (M.D. La. Oct. 6, 2022), and Indus. Packaging Supplies, Inc. v. Davidson, 2019 WL 850903, at *2 (D.S.C. Feb. 22, 2019).

Clearly, there is no impediment to negotiating an ESI Protocol and submitting it for court approval.

AN ESI PROTOCOL MAY NOT BE ENOUGH

However, because the term “ESI Protocol” is not rules-based, it is, as Lewis Carroll wrote, “what I choose it to mean — neither more nor less….”

That is a good thing.  Parties can tailor a protocol to meet the needs of their case.  One size can’t fit all cases.  Fed.R.Civ.P. 29(b) and the common law provide welcome, necessary, and appropriate  flexibility for an “ESI Protocol.”  For example, Rule 29(b) states that the parties may stipulate that “any other procedures governing or limiting discovery be modified….”

While the ESI Protocol is flexible, Rule 26(f)(3) is not.  It states that, in a “discovery plan,” certain topics “must” be reported to the court.  Some of them may not be included in an ESI Protocol.  The mandatory topics are:

(A) what changes should be made in the timing, form, or requirement for disclosures under Rule 26(a), including a statement of when initial disclosures were made or will be made;

(B) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues;

(C) any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced;

(D) any issues about claims of privilege or of protection as trial-preparation materials, including — if the parties agree on a procedure to assert these claims after production — whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502;

(E) what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed; and

(F) any other orders that the court should issue under Rule 26(c) or under Rule 16(b) and (c).

An “ESI Protocol,” or its cousins like an “ESI Stipulation,” particularly if tailored to a minimalist approach, may be a great way to address ESI, but it may not fill this bill.  And, the Federal Rules of Civil Procedure mandate that a “discovery plan” be submitted.

One solid approach is to negotiate an ESI Protocol as part of a discovery plan.  Another may be to address the discovery plan later, but timely under Fed.R.Civ.P. 26(f)(2).  An alternative could be to negotiate a “discovery plan” in lieu of an ESI Protocol.

In all events, however, the mandatory provisions of Rule 26(f)(2) cannot be ignored.  Under Rule 26(f)(2), the parties must submit “to the court within 14 days after the conference a written report outlining the [discovery] plan.”

Thanks to Tom O’Connor for his review of a prior draft and suggestions that improved it. Of course, I alone am responsible for any errors in this blog.

This blog was initially posted on  Electronic Discovery Reference Model and  JD Supra.

UPDATE: Fed.R.Civ.P. 37(f): “Failure to Participate in Framing a Discovery Plan. If a party or its attorney fails to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26(f), the court may, after giving an opportunity to be heard, require that party or attorney to pay to any other party the reasonable expenses, including attorney’s fees, caused by the failure.”

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[1]  A later blog will address whether an ESI Protocol can be subsequently modified.

[2] Bioconvergence LLC v. Attariwala,  2023 WL 4494020, at *2 (S.D. Ind. June 29, 2023).

[3] Additionally, Rule 26(f)(4) refers to “the written report outlining the discovery plan,” albeit in the context of an expedited schedule.  Local Rule 104.b of the U.S. District Court for the District of Maryland refers to “a report” under Rule 26(f).

[4] To the same effect, the 1983 Committee Note states: “The amendment envisioned a two-step process: first, the parties would attempt to frame a mutually agreeable plan; second, the court would hold a ‘discovery conference’ and then enter an order establishing a schedule and limitations for the conduct of discovery….  Before entering such orders, the court should consider the views of the parties, preferably by means of a conference, but at the least through written submissions. Moreover, it is desirable that the parties’ proposals regarding discovery be developed through a process where they meet in person, informally explore the nature and basis of the issues, and discuss how discovery can be conducted most efficiently and economically….  As noted above, former subdivision (f) envisioned the development of proposed discovery plans as an optional procedure to be used in relatively few cases. The revised rule directs that in all cases not exempted by local rule or special order the litigants must …plan for discovery. Following this meeting, the parties submit to the court their proposals for a discovery plan and can begin formal discovery. Their report will assist the court in seeing that the timing and scope of disclosures under revised Rule 26(a) and the limitations on the extent of discovery under these rules and local rules are tailored to the circumstances of the particular case….  The report is to be submitted to the court within 10 days after the meeting and should not be difficult to prepare.” [emphasis added].

[5] John B. v. Goetz,  2007 WL 4014015, at *2 (M.D. Tenn. Nov. 15, 2007), mandamus granted, order vacated in part, 531 F.3d 448 (6th Cir. 2008).

[6] Michael D. Fielding & Jack Seward, “You Need to Know This: Bankruptcy and Attorney-Client Privilege in the Electronic Age,” Am. Bankr. Inst. J., December/January 2007, at 1.

[7] In re NYSE Euronext S’holders/ICE Litig., 39 Misc. 3d 619, 622, 965 N.Y.S.2d 278, 280 (Sup. Ct. 2013).

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.

There has long been an interest in low-cost technology. For example, two decades ago, I wrote “Low Cost Litigation Technology” (Md. Bar Journal Nov./Dec. 2000).  Similarly, Craig Ball has blogged about the EDNA: Still Cheap and Challenged | Ball in your Court (craigball.net) (Apr. 15, 2016), and E-Discovery for Everybody (craigball.com)(2009).  And, about a decade ago, Bruce A. Olson and Tom O’Connor authored “Electronic Discovery for Small Cases” (ABA 2012).

The Sedona Conference Primer adds a significant contribution.  The premise of the Primer is that “most cases are small cases, and most of those are pending in state courts.”  While there are many excellent points about proportionality and cooperation, one exceptional aspect is that the Primer “identifies some low- or no-cost tools and technologies” for cases with a “tight budget.”

First, the Primer offers a non-exhaustive list of factors to define a “small case.”  Id. at 4.  Rather than “bright-line rules” it suggests discussion and cooperation to define a “small case.”  Id.

Second, the Primer emphasizes proportionality.  Id. at 6. This involves adaptations to reduce costs.

Third, the Primer provides a number of “tips” to tailor e-discovery for the small case.  Id., passim. These include early discussion, custodian interviews, a reasonable legal hold, and guidance on self-help collection, id. at 9, 11-12.[1]  The Primer suggests that proportionality for the small case may dictate preservation-in-place and lists some factors to consider in making that decision.  Id. at 10.  It also addresses built-in e-discovery solutions, such as those discussed in District of Maryland Gives Qualified Approval to Non-Forensic Downloads of Social Media Data.  The Primer notes: “Consideration should be given in small cases to how best to design the collection and search process to save costs and limit volume.”  Id. at 19.  In short, the tips cover the e-discovery spectrum from preservation through trial.  Id., passim.

However, it is in §VI – “cost-effective use of discovery technology in small cases” – where the Primer shines.   For example, it describes the use of “PhoneView,” an inexpensive application to collect and produce text messages.  And, it discusses the self-collection methods provided by some social media applications, including X1 social discovery, which I demonstrated in a recent program. See Md. State Bar Association Program on Social Media.[2]  The Appendix adds to the specificity with mentions of specific low-cost software, as well as links to video examples.

Cooperation and proportionality have become critical factors in contemporary litigation.  The Sedona Conference Primer is an excellent resource for implementing those goals.

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[1] For additional detail on self collection, see generally Maker’s Mark: A Different View of Self Collection, Self-Identification and Self-Preservation: A Fool for a Client?, and, Unsupervised Self-Collection Predictably Led to Problems.

[2] The Primer suggests that licensing X1 may be cost prohibitive for one or two small cases.  In my experience, few lawyers have only one or two cases and X1 can provide an economical and proportional option. In the Appendix, the Primer suggests reaching out to a vendor to spread the costs. While that may be a useful course of action, there are many options, and it may also be prudent to contact X1 directly.

Although cases abound regarding the discoverability of electronic records, research has failed to locate a comprehensive analysis of the many interrelated evidentiary issues associated with electronic evidence. Because there is a need for guidance to the bar regarding this subject, this opinion undertakes a broader and more detailed analysis of these issues than would be required simply to resolve the specific issues presented in this case. It is my hope that it will provide a helpful starting place for understanding the challenges associated with the admissibility of electronic evidence.

Id. at 537.

The Hon. Paul W. Grimm denied cross-motions for summary judgment and wrote that: “It is difficult for the Court to provide the appropriate background to the underlying arbitration in this case because, as will be discussed in greater detail below, neither party has proffered any admissible evidence to support the facts set forth in their respective motions.”

The Court explained:

Very little has been written… about what is required to insure that ESI obtained during discovery is admissible into evidence at trial, or whether it constitutes “such facts as would be admissible in evidence” for use in summary judgment practice. Fed.R.Civ.P. 56(e). This is unfortunate, because considering the significant costs associated with discovery of ESI, it makes little sense to go to all the bother and expense to get electronic information only to have it excluded from evidence or rejected from consideration during summary judgment because the proponent cannot lay a sufficient foundation to get it admitted. The process is complicated by the fact that ESI comes in multiple evidentiary “flavors,” including e-mail, website ESI, internet postings, digital photographs, and computer-generated documents and data files.

241 F.R.D. at 537-38 (emphasis added).

The decision went on to carefully analyze “a collection of evidence rules that present themselves like a series of hurdles to be cleared by the proponent of evidence.”  Id. at 538.  It proceeds to explain the trial court’s gatekeeper role and the various issues presented by each “flavor.”

Lorraine was the first, and has been described as “the most[,] comprehensive single opinion regarding the admissibility of ESI….”  Hon. Paul W. Grimm, et. al., “Back to the Future: Lorraine v. Markel American Insurance Co. and New Findings on the Admissibility of Electronically Stored Information,” 42 Akron L. Rev. 357, 360 (2009).

It has also been called the “godfather of all cases,”  Linda Greene, “Mining Metadata: The Gold Standard for Authenticating Social Media Evidence in Illinois,” 68 DePaul L. Rev. 103, 112 (2018), and a “landmark case,”  Abraham Oxner, “A New Age of Authentication,” 23 J. Tech. L. & Pol’y 229, 234 (2019).

The ground-breaking decision remains a textbook resource today. For example:

This case is seen as an exhaustive guide to the admissibility of social media evidence in trials, and the case features a lengthy section on authenticating such evidence during the course of trial. The opinion was written by Judge Paul Grimm, who is considered to be the leading jurist on the admissibility of social media evidence. In it, Judge Grimm identified several useful tools for authenticating such evidence, including using the distinctive characteristics of specific posting habits to show that a user has a habit of posting in a certain way. This specific characteristics approach has since been used in a number of other federal cases where social media content made up a significant portion of the available evidence.

Maximilian Bungert, “Do It for the Snap: Different Methods of Authenticating Snapchat Evidence for Criminal Prosecutions,” U. Ill. J.L. Tech. & Pol’y, Spring 2021, at 121, 132–33.

History is important.

______

[1] 2006 WL 2836885.

[2] 2006 WL 5229809; 241 F.R.D. at 534.