University of Denver

Rule 26(g) Used for the First Time to Control Discovery Abuse

Senior Director

Despite the fact that Federal Rule of Civil Procedure 26(g) went into effect in 1983, the first judicial opinion enforcing this provision was issued just last month. In Branhaven LLC v. Beeftek, Inc., __ F.R.D. __, 2013 WL 388429 (D. Md. Jan. 4, 2013), Magistrate Judge Susan Gauvey of the District of Maryland sanctioned both Plaintiff corporation and Plaintiff’s attorneys under Rule 26(g), ordering them to pay the fees and costs incurred by defense counsel as a result of Plaintiff’s “large, disorganized and last minute document production.” Magistrate Judge Paul Grimm first called attention to this unused rule in Mancia v. Mayflower Textile Services Co., 253 F.R.D. 354 (D. Md. 2008), a landmark opinion known for its in-depth discussion of the need for cooperation in discovery. As Judge Grimm notes in Mancia, “[t]he failure to engage in discovery as required by Rule 26(g) is one reason why the cost of discovery is so widely criticized as being excessive—to the point of pricing litigants out of court.” Ralph Losey discusses both opinions, the importance of the duties of counsel under Rule 26, and cooperation as the key to a successful e-discovery practice in his blog post, "The Increasing Importance of Rule 26(g) to Control e-Discovery Abuses."