“Zingers tend not to improve briefing” & Tutorial on Unsworn Declarations Under Penalty of Perjury

There is a problem when the court writes that it “reminds the Parties … that they are engaged in civil litigation, and the Court urges all involved to conduct themselves accordingly.”  Pendleton v. Revature LLC, 2025 WL 2493090, at *5 (W.D. Wash. Aug. 11, 2025)(emphasis in original; citation and quotation omitted).  It then added:

Under no circumstances should an attorney knowingly lie to a Court; and conversely no attorney should make such a serious accusation as a matter of hyperbole or exaggeration. Plaintiff’s assertion that Defendants’ “attorneys have disgraced themselves and their chosen profession” … is inflammatory and unhelpful, as is his statement that “[t]o allow responses to written discovery to pass through the hands of any attorney for Defendant Revature LLC would be to invite further fraud”…. Generally impugning each other’s professionalism and integrity does not persuade the Court of the merits of the Parties’ respective positions. Zingers tend not to improve briefing.

Id. (emphasis added; cleaned up; citations and quotations omitted).

Pendleton is an employment-discrimination action.  Mr. Pendleton alleged that his former employer and several other employees violated his rights under the Americans with Disabilities Act by improperly disclosing protected medical information leading to harassment and other related alleged wrongs.  In his motion to compel, Mr. Pendleton made four demands.

First, he alleged that Defendants’ responses to all interrogatories and requests for admission be sworn under oath and in person….” (emphasis in original).  He demanded that the responses “actually be sworn in front of a clerk or notary public.”

Defendants had used Docusign and purportedly “being duly sworn upon oath,” verified that their “answers and responses [to interrogatories] [were] true and correct to the best of [their] knowledge and belief.” Id. at *2.

Because they had not certified “under penalty of perjury,” the court held that Defendants had not complied with 28 U.S.C. §1746 and therefore had not verified their responses under Fed.R.Civ.P. 33(b)(3).  Adequate verification was ordered.  The court rejected any requirement beyond that statute.  Id. at*3.

The statute governing unsworn declarations under penalty of perjury, 28 U.S.C. §1746, was enacted in 1976:

Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:

(1) If executed without the United States: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date).

(Signature)”.

(2) If executed within the United States, its territories, possessions, or commonwealths: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).

(Signature)”.

I first litigated that provision in 1983.  Copiers Typewriters Calculators, Inc. v. Toshiba Corp., 576 F. Supp. 312, 315 (D. Md. 1983).  It seems like an unforced error to fail to rely on §1746 with specificity.

Second, Mr. Pendleton demanded verification of Defendants’ responses to his Requests for Admission (“RFA”).  He asserted that “most” of Defendants’ responses were incomplete or untruthful.  The Pendleton court held that nothing in the RFA Rule, Fed.R.Civ.P. 36, requires verification.  Mr. Pendleton’s Rule 37 motion to compel was misplaced.  He did not file a Rule 36 motion regarding sufficiency.  His misfocused motion was denied.

Third, Mr. Pendleton demanded verification of Defendants’ responses to his Requests for Production.  The Pendleton court held that Rule 34 contains no such requirement.  While Mr. Pendelton now claimed that “[t]here are many missing documents that are known to exist but have not been produced,” in the meet-and-confer emails, he stated only that they “implicitly should exist.”  Further, Defendants maintained that, to the extent their production did not represent all producible documents, they were continuing to search and would timely supplement.  The court wrote:

“[T]he Court in such disputes must accept representations made by the parties, including the producing party, until such time as those representations are shown to be false or unfounded.” … Plaintiff’s motion has not shown as much. The gulf between “implicitly should exist” and “known to exist” is vast, and Plaintiff does not explain why he has described the purportedly missing records as the former to Plaintiffs, but as the latter to the Court. Moreover, if Plaintiff does indeed “know[ ]” that certain responsive documents exist, it is not clear why Plaintiff has not taken steps to compel their production under Rule 37(a)(3)(B)(iv). The intermediate step of asking the Court to order Defendants to verify the completeness of their responses—verification which, as discussed above, is not necessary under Rule 34—is an unnecessary use of the Court’s limited resources that does not address his underlying concerns about completeness. After all, in Defendants’ response to Plaintiff’s motion, Defendants’ counsel represents to the Court that Defendants “timely served substantive responses, limited objections, and produced the responsive documentation found through March 31, 2025.” … Defendants’ counsel signed the response, thereby attesting to the truth of its content. … see Fed. R. Civ. P. 11(b); LCR 11(a)(6)(A)(i). In other words, what Plaintiff seeks has already been provided to the Court.

Id. at *4 (emphasis added; cleaned up). Because this was a discovery issue, a citation to Rule 26(g), instead of Rule 11, might have been made.

As part of this issue, Defendants stated that Mr. Pendleton refused their offer of a privilege log.  In refusing to do so, the court wrote that Mr. Pendleton “leapt straight to the conclusion” that Defendants were hiding the ball.  The court held that the refusal to discuss the privilege log “rendered the meet-and-confer incomplete.” Id. at *4. It therefore refused to address the issue presented by Mr. Pendleton.

Fourth, Mr. Pendleton asked for an order that service by email be permitted. Defendants responded that the request was unnecessary and outside the scope of a motion to compel.  Based on the parties actions, the court wrote: “Irrespective of the propriety of such a request, it does not appear that the Court’s intervention is entirely necessary on this issue….” Id. at *4.  However, it wrote:

Even so, the Court recognizes that the Federal Rules authorize service “by … electronic means that the [Parties] consented to in writing.” Fed. R. Civ. P. 5(b)(2)(E) (emphasis added). Therefore, the Parties SHALL formalize their electronic-service arrangement by memorializing it in writing.

Id. at *5.

Finally, the court denied Mr. Pendleton’s motion for sanctions noting that “Plaintiff refused Defendants’ ‘offer[ ] to add ‘under penalty of perjury’ [to] each discovery verification page”…—an addition that would have brought Defendants’ interrogatory responses into compliance with Rule 33 and cured the only deficiency that Plaintiff’s motion sufficiently alleges….” Id. at *5.

The Pendleton court wrote that discovery should be cooperative and not supervised by the court: “The Court … strongly advises the Parties to cooperate with one another. Every time the Court’s intervention into an ancillary issue is sought, the case is delayed, and the Parties are led astray from the substantive issues at hand.”  Id.