Abstract
For over eighty years, Rule 11 of the Federal Rules of Civil Procedure has authorized sanctions to combat frivolous legal arguments and factual allegations in some paper presentations. Since 1993, however, the rule has not applied to discovery. This article demonstrates how Rule 11 should be used to deter advocacy based on discovery that has “gone bad” since its initial disclosure. Disciplinary actions, malpractice claims, the discovery rules, and even the inherent sanctioning authority of the court are insufficient to deter lawyers from relying on now-bad discovery papers. Rule 11 would hold lawyers to a duty of reasonable inquiry before relying on prior discovery, including discovery conducted or presented by a prior lawyer or firm. This article proceeds in six parts. First, it generally demonstrates why it matters that Rule 11 apply to now-rotten discovery papers. Second, it employs a 2001 Fourth Circuit opinion to show how a Rule 11 application to gone-bad discovery would help deter frivolity in civil litigation. Third, it reviews the current rule’s exclusion of “discovery process” violations, arguing that it does not encompass presentations of discovery once good, but now gone bad. Fourth, it briefly reviews how federal case practices on pleadings gone bad can apply to discovery gone bad. Fifth, it reviews comparable state laws and precedents on presentations of civil litigation papers gone bad. Finally, it concludes with suggestions on how Rule 11 sanctions should be assessed for advocacy of now-bad discovery papers.
Creative Commons License
This work is licensed under a Creative Commons Attribution-NonCommercial-No Derivative Works 4.0 International License.
Recommended Citation
Jeffrey A. Parness & Alexandria N. Short,
Rule 11 Sanctions for Bad Discovery Advocacies,
54
N.M. L. Rev.
203
(2024).
Available at:
https://digitalrepository.unm.edu/nmlr/vol54/iss1/7
