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July 25, 2011

26(g) Atty Certification Includes Tech Used for Production

Carmel At the Carmel Valley eDiscovery Retreat panel discussion on "Defending Your E-Discovery Process," the scope of the attorney certification to a document production was discussed in detail. 

FRCP 26 (g) requires 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 certifying they have done a reasonable inquiry and it is complete and correct. The consequences of an an attorney not doing a reasonable inquiry was painfully addressed in Qualcomm v. Broadcom Corp.  

Although not directly specified, certification also requires that the attorney has done a reasonable inquiry into the technology used to do the search.  All technology has limitations and understanding those limitations is critical to being able to certify the completeness of the production.

Additionally, early attention to ESI, Rule 26 (f) disclosure, should also include information about the technology behind the search as well. The disclosure should include capabilities as well as known exceptions and any quality control testing that will be used in the production as well. Many companies are creating a technology play book for use during the early attention discussions.

Since every e-discovery production now requires technology, attorneys should make sure they understand the technology behind it before certifying production. 



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