Common Rule 11 violations in discovery requests and objections

I’m not sure my fellow members of the bar are aware they are doing it, but I see a whole lot of Rule 11 violations in discovery requests and objections.

Rule 11 of the South Carolina Rules of Civil Procedure reads in part:

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.

Rule 26(g) of the South Carolina Rules of Civil Procedure makes this provision applicable to discover requests or responses:

Signing of Discovery Requests, Responses, and Objections.  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.

The most common Rule 11 violation I see is when attorneys object to discovery that they themselves have requested.  In family court this typically occurs surrounding requests for information on fee agreements and payment, which attorneys often object to by claiming the attorney-client privilege.  I believe one waives this privilege when one seeks attorney’s fees but, even if my view isn’t correct, one cannot object to responding to this discovery based upon privilege while requesting this information oneself.  Either there is “good ground to support” the request for fee information or there isn’t.

Less common, but an even clearer violation of Rule 11, is objecting to the standard interrogatories that the Supreme Court has promulgated in SCRCP 33(b).  If the Supreme Court has approved these interrogatories for all cases, I do not see how they could be objectionable.  Still, I’ve seen attorneys object.

…and don’t even get me started on the myriad boilerplate objections some attorneys deem necessary to have at the beginning of every written discovery response.  Have these attorneys even read their objections?  Have they thought about whether there is “good ground to support” each of these objections?  Have they considered their Rule 11 certification before signing their response?  Doubtful.

Attorneys have been sanctioned for Rule 11 violations.  See e.g., Ex parte Gregory, 378 S.C. 430, 663 S.E.2d 46 (2008); Runyon v. Wright, 322 S.C. 15, 471 S.E.2d 160 (1996).  In my experience judges are much more sympathetic on motions to compel discovery when the other side has refused to respond to discovery yet that side has requested similar discovery.  I assume these attorney are not cognizant of their violations but I prefer to practice more cautiously.

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