“MUST” MEANS MUST — SANCTIONS FOR IMPROPER CERTIFICATION UNDER FED.R.CIV.P. 26(g)

Under the federal discovery rules all requests, responses and objections must be signed by counsel and the signature operates as a certification that the disclosure or response is complete and correct and that a request, response or objection is consistent with the rules and not interposed for an improper purpose or unreasonable delay and an improper certification is sanctionable. Fed.R.Civ.P. 26(g). While practitioners are aware of the rule’s requirements and the threat of sanctions, it is worth remembering that a violation without “substantial justification” mandates the entry of an appropriate sanction against counsel, the party or both.

Rule 26(g)(3) provides that if a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction, which may include an order to pay the reasonable expenses, including attorney’s fees, caused by the violation. The operative word is must.

Those lawyers that just play lip service to the certification requirement do so at their peril. The 7^th Circuit recently reminded us of this, in vacating a trial court’s decision to decline to enter sanctions under Rule 26(g); holding that while the trial court has discretion over the nature of the sanction it does not have the discretion to let a violation (without substantial justification) pass without imposing some sanction. Rojas v. Town of Cicero, Illinois, Case No. 14-1446 (7th Cir. 1/5/15).

This is just the latest cautionary tale regarding the extreme care needed in propounding or responding to discovery. The days of a cavalier approach to discovery are in the past and when the rules say “must” it means must.