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Are you Certifiable?

It is not unusual for opposing counsel to demand that you “certify” that your client’s document production is complete and correct.  What does this mean? Are you required to do it?

The issue often arises in consolidated mass tort proceedings that typically involve the production of millions of pages of documents from hundreds of custodians and central sources.  Given the sheer volume of the information, how can any lawyer comfortably represent that every single responsive document has been produced?

The reality is that he or she cannot.  At best, a lawyer can only represent that the documents stored in a particular source, such as a custodial file, have been produced.  It is then up to the parties to negotiate over whether the scope of the search for responsive documents is adequate.

Nevertheless, the other side – and sometimes the court – will press you to “certify” the completeness of your client’s document production.  Magistrate Judge Andrew Peck addressed this issue in his widely publicized decision in Da Silva Moore v. Publicis Groupe, 2012 U.S. Dist. Lexis 23350 (S.D.N.Y. 2012).  Some of you may recognize Da Silva Moore as the seminal case to embrace predictive coding, also known as computer assisted review.  The theory of predictive coding is that once a “seed set” of documents is reviewed for responsiveness, the computer can then predict the probability that the remaining documents to be reviewed are responsive.  The hope is that as this technology evolves, it will reduce the amount of human review.  This is particularly important as document review and production can be one of the greatest single expenses in mass tort litigation.

But, back to Da Silva Moore.  In arguing against the acceptance of predictive coding, the plaintiffs asserted that by using technology rather than human eyes to review every single document, no lawyer could “certify” the document production.  Specifically, the plaintiffs asserted that, if accepted, predictive coding “provides unlawful ‘cover’ for [the defendant’s] counsel who has a duty under FRCP 26(g) to ‘certify’ that their client’s document production is ‘complete’ and ‘correct’ as of the time it is made.”  Id. at *20.  Judge Peck quickly dismissed the plaintiffs’ argument:

In large-data cases like this, involving over three million emails, no lawyer using any search method could honestly certify that its production is “complete” – but more importantly, Rule 26(g)(1) does not require that.  Plaintiffs simply misread Rule 26(g)(1).  The certification required by Rule 26(g)(1) applies “with respect to disclosure.”  That is a term of art, referring to the mandatory initial disclosures required by Rule 26(a)(1).  Since the Rule 26(a)(1) disclosure is information (witnesses, exhibits), that “the disclosing party may use to support its claims or defenses,” and failure to provide such information leads to virtually automatic preclusion, see Fed. R. Civ. P. 37(c)(1), it is appropriate for the Rule 26(a)(1)(A) certification to require disclosures be “complete and correct.”

Rule 26(g)(1)(B) is the provision that applies to discovery responses.  It does not call for certification that the discovery response is “complete,” but rather incorporates the Rule 26(b)(2)(C) proportionality principle.  Thus, Rule 26(g)(1)(A) has absolutely nothing to do with [the defendant’s] obligations to respond to plaintiffs’ discovery requests.

Id. at 21-22.

In sum, Judge Peck found nothing in Rule 26 that requires a lawyer to certify that a document production is “complete” or “correct.”  The next time you are asked to do this, you are well within your rights to refuse.  Although a court may require you to reveal the places where your client has searched for responsive documents and to certify that, to your knowledge, the production of the documents contained in those sources is complete, any requirement that you do more is improper.

Benjamin M. Watson