Fed.R.Civ.P. 26(g) Was Violated by Permitting Client Searches With Minimal Oversight by Counsel

Fed.R.Civ.P. 26(g) Was Violated by Permitting Client Searches With Minimal Oversight by Counsel by Michael Berman, E-Discovery LLC
Image: Holley Robinson, EDRM with AI.

[EDRM Editor’s Note: This article was first published here on June 18, 2025. The opinions and positions are those of Michael Berman.]

Fed.R.Civ.P. 26(g) is called the “stop and think” rule.  In Grullon v. Lewis, 2025 WL 1693425 (S.D.N.Y. Jun. 17, 2025), the court found a violation of that rule.  The court held that:

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.

Grullon v. Lewis, 2025 WL 1693425 (S.D.N.Y. Jun. 17, 2025).

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].

Id.

The court cited several supporting authorities1 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.

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.

Grullon v. Lewis, 2025 WL 1693425, at *1 (S.D.N.Y. Jun. 17, 2025).

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).

Read the original article here.

Notes

  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.”).” ↩︎

Assisted by GAI and LLM Technologies per EDRM GAI and LLM Policy.

Author

  • Miichael Berman's headshot

    Mike is the owner of E-Discovery, LLC, and of counsel at Rifkin Weiner Livingston LLC, in Baltimore. He concentrates on commercial litigation and offers mediation services. He was the primary editor of Electronically Stored Information in Maryland Courts (Md. State Bar Ass’n. 2020), and he co-edited M. Berman, C. Barton, and P. Grimm, eds., Managing E-Discovery and ESI: From Pre-Litigation Through Trial (ABA 2011), and J. Baron, R. Losey, and M. Berman, eds., Perspectives on Predictive Coding (ABA 2016). Mike has litigated a number of cases in the trial and appellate courts in Maryland. He is an Adjunct Professor at the University of Baltimore School of Law where he co-teaches a three-credit discovery workshop that focuses on e-discovery. He has lectured at the Maryland Judicial College and he chaired the Bar committee that drafted the proposed ESI Principles for the District of Maryland. He is a past: co-chair of the Federal District Court Committee of the Maryland State and Federal Bar Associations; chair of the Litigation Section Council, Maryland State Bar Association; and, co-chair of the American Bar Association Litigation Section Book Publishing Board. He graduated from the University of Maryland School of Law and is also an Army veteran. He is admitted to the Maryland bar. The opinions expressed in this blog are not necessarily those of Rifkin Weiner Livingston LLC.

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