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Objecting to discovery that you sought yourself

I often see attorneys object to discovery requests when those same attorneys request the same discovery.  There are potential ethical violations and tactical problems in doing this.

South Carolina Rule of Civil Procedure 11(a) reads:

Every pleading, motion or other paper of a party represented by an attorney shall be signed in his individual name by at least one attorney of record who is an active member of the South Carolina Bar, and whose address and telephone number shall be stated. … The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information and belief there is good ground to support it; and that it is not interposed for delay.

South Carolina Rule of Civil Procedure 7(b)(2) makes Rule 11(a) applicable to discovery requests (which would be considered “other papers provided for by these rules”):

The rules applicable to captions, signing, and other matters of form of pleadings apply to all motions and other papers provided for by these rules.

Rule 26(g), SCRCP makes the application of Rule 11 to discovery requests and responses even more explicit:

Every request for discovery or response or objection thereto made by a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign the request, response, or objection and state his address. The signature of the attorney or party constitutes a certification in accordance with Rule 11.

Taken together, an attorney-issued discovery request implicitly certifies that “to the best of his knowledge, information and belief there is good ground to support it.”  The argument that a discovery request has good grounds to support it but is still objectionable is too subtle for my comfort.

In prosecuting a motion to compel, I believe it is perfectly appropriate to point out the opposing counsel issued a similar request.  I would further question how that attorney could believe the request had good ground to support it if that attorney thought the request was objectionable.

The takeaway: be cautious before objecting to discovery that you yourself requested.

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