Recent Court Decision Highlights
Importance of Reasonable Inquiry
by J. Andrew Reynolds
In Play Visions, Inc. v. Dollar Tree Stores, Inc.1,
a recent decision out of the U.S. District Court for the Western
District of Washington in Seattle, the court ordered Rule 26(g)(1)
discovery sanctions against Play Visions' counsel for failing to make
reasonable inquiry as to whether the client's discovery responses were
Play Visions' counsel committed a number of discovery blunders that
led to sanctions, including turning over incomplete, inadequate and
delayed document productions while certifying that productions were
complete. Rule 26(g)(1) of the Federal Rules of Civil Procedure requires
that discovery responses be signed by at least one attorney of record
and that by signing the discovery response, counsel certifies that the
information in the underlying response was formed after a reasonable
The court's opinion lists the following examples of counsel's failure to make a reasonable inquiry:
- Counsel failed to familiarize himself with the client's document storage and retention systems
- Counsel did not take an active role in guiding the client in searching for records
- Counsel failed
to make an independent inquiry into how documents were stored and how
thoroughly they were searched for and produced
- Counsel had little to no involvement in the production of documents
- Counsel relied entirely on the client to provide discovery responses
This case highlights the need for outside counsel to work closely
with the client and in-house counsel with regards to discovery. As
emphasized in the often referenced Qualcomm2 case,
"attorneys and clients must work together to ensure that both understand
how and where electronic documents, records and emails are maintained."3 The court in Qualcomm
added additional incentive for communications and coordination between
counsel and client by stating that outside counsel is responsible for
ensuring that clients conduct a comprehensive and appropriate document
What constitutes a "reasonable inquiry" in the world of electronically stored information? According to the court in Play Visions,
at least some level of involvement by outside counsel in the
identification and production of documents is required. The court
suggests that counsel (1) become familiar with the client's document
retention and storage systems, (2) guide the client through searches and
(3) make an independent inquiry about how documents are stored,
searched and produced. In Qualcomm, the court stated that a
reasonable inquiry for that case would include identifying employees who
are knowledgeable of the facts at issue and searching these employees'
computers through the use of fundamental search terms. Certainly, the
answer as to what constitutes a reasonable inquiry depends on the facts
of each case. However, counsel can take the following preliminary
actions to help ensure reasonable inquiry:
- Identify the sources of responsive documents:
Work closely with in-house counsel and the client's IT department to
identify all sources of potentially responsive documents and the
location of those sources. Counsel may also identify the retention
policies governing each source of relevant information.
- Ensure document preservation: Although not an issue in Play Visions,
document preservation is a critical element of reasonable inquiries.
Counsel should work with in-house counsel to prepare a legal hold notice
and circulate it to relevant employees and managers of document sources
to ensure that key documents are not destroyed.
- Interview key employees:
Counsel should interview key employees to assess how and where they
store electronic and paper documents. Counsel may also use these
interviews to identify additional employees with responsive information
and confirm they understand and comply with the legal hold.
- Collect documents properly:
After counsel has identified (and preserved) sources of relevant
documents, work with the relevant employees and IT department personnel
to collect documents in an efficient and defensible manner.
- Create a list of key search words:
Work closely with the client to create a list of key words to help
identify likely responsive documents (and cull out non-responsive
documents) prior to any document review.
- Document processes followed:
Create and maintain documentation regarding each of the processes
described above. Documentation plays a critical role if discovery
responses are ever challenged.
While not exhaustive, nor necessarily required for every case, the
processes listed above will help create a solid foundation for
representing to a court that a reasonable inquiry was made. This in turn
may help avoid a Rule 26(g)(1) sanction.
1 Play Visions, Inc. v. Dollar Tree Stores, Inc., No. C09-1769 MJP (W.D. Wash. June 8, 2011)
2 Qualcomm Incorporated v. Broadcomm Corporation, Case No. 05-CV-1958-B (BLM) (S.D. Cal.)
3 Order Granting In Part And Denying In Part
Defendant's Motion for Sanctions and Sanctioning Qualcomm, Incorporated
and Individual Lawyers (January 7, 2008) ("Order") at 18
4 Order at 18.
Strategically Mitigate the Risk of Inadvertent Privilege Disclosure
Given the proliferation of electronic data and the vast amount of
discoverable information in large matters, the inadvertent disclosure of
privileged information is inevitable. This is true whether documents
are coded by humans or through predictive coding technology.
However, there are ways to mitigate the risks associated with
inadvertent privilege disclosure. The following strategies will help a
discovery team respond quickly and efficiently when privileged
information is mistakenly produced.
- Establish a clawback agreement.
A clawback is an agreement between the parties, typically in the form
of an agreed court order, in which the parties agree that, within some
parameters, the inadvertent production of privileged information does
not constitute a privilege waiver. There is typically a provision
stating the parties will promptly return or destroy documents identified
as privileged. In the absence of a clawback agreement, the parties rely
solely on the court's application of Federal Rule of Evidence 502 as it
relates to privilege disclosure. Federal Rule of Evidence 502 codified
the rule that if counsel takes reasonable precautions against
inadvertent disclosure, then they can request the return of the
documents, either by the process set forth in the rules or by agreement.
- Implement defensible processes.
When attempting to claw back documents, either under the terms of a
clawback agreement or Federal Rule of Evidence 502, it is important to
demonstrate that the production was, in fact, inadvertent. Being able to
demonstrate that the team responsible for the production was operating
according to best practices will go a long way toward proving the
production was inadvertent.
- Follow an inadvertent disclosure response plan.
Upon realizing that privilege has been produced, time is of the
essence. Immediately inform individuals managing the case of the
privilege disclosure. Inform the opposing party as outlined in the
clawback agreement. If a clawback agreement does not exist, be mindful
that a delay in notifying the opposing party may result in a privilege
waiver under Federal Rule of Evidence 502.
There is no substitute for implementing and following best practices
to ensure that privileged material is properly withheld during document
productions. However, should a privilege disclosure occur, a timely and
effective response will help mitigate associated risks. Put simply,
prudence dictates preparedness.
Nina Rowland Reboots Legal Career, Embraces Modern Discovery
There's no substitute for experience, and Nina Rowland has a lot of that when it comes to discovery and litigation.
Nina remembers when discovery involved scouring through boxes of
paper documents in dusty warehouses, computers were slowly making their
way to attorneys' desks, email was in its infancy, and "networking"
meant attending social functions with clients.
Now an associate in LeClairRyan's Discovery Solutions Practice, Nina
brings with her a wealth of knowledge and a unique understanding of the
evolution of the discovery process.
After graduating with a bachelor's degree in criminal justice and a
minor in sociology from the University of Delaware, Nina began her legal
career as a paralegal with the Legal Assistance Association in Chester,
Pennsylvania. Inspired by the dedication of her co-workers, she
continued to work part-time while pursuing a law degree at the Temple
University School of Law more than 20 years ago.
Upon earning her Juris Doctor, Nina dove right into her legal career
and joined a large Philadelphia firm's labor and employment group, where
she became fully immersed in all aspects of employment litigation,
including preparing and answering discovery requests, taking
depositions, drafting briefs, and arguing motions. At this time,
facsimile machines and floppy discs were the latest technology, and
discovery paled in comparison to the technologically advanced processes
After five busy years working in Philadelphia, Nina and her husband
relocated to Richmond, Virginia to raise a family. During this time,
Nina took a hiatus to stay home with her two children until they were in
elementary school. When this came to pass, she worked in the child
support enforcement arena and practiced on her own until she came across
an ad for full-time document review attorneys six years ago. She
applied for the job and was hired – at LeClairRyan.
Working in this new capacity, Nina quickly learned that much had
changed in discovery since those early days in Philadelphia when
documents were produced on paper and mail always involved envelopes and
stamps. She vividly remembers her first day reviewing documents, staring
at a computer screen and asking herself, "Where are all the boxes of
Since joining LeClairRyan in 2005, there's been no stopping Nina. She
successfully rebooted her career, working her way up from a contract
attorney to an associate and mastering the technology needed to navigate
discovery and litigation in the digital age. Having been actively
involved in all phases of discovery and spending much time in the
courtroom, Nina understands the demands of litigation first-hand. Her
practical skill set and understanding of the evolution of the litigation
process make her an invaluable addition to DSP's team.
Outside the office, Nina enjoys spending time with her family and
"chauffeuring" her two teenagers to and from their various sports and
other activities. She serves as a member of her church's lay leadership
and is actively involved in teaching Sunday school and planning
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