Common Rule 11 violations in discovery requests and objections

Posted Thursday, April 3rd, 2014 by Gregory Forman
Filed under Family Court Procedure, Of Interest to Family Law Attorneys, South Carolina Specific

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.

11 thoughts on Common Rule 11 violations in discovery requests and objections

  1. Good post – I agree with you on the Fee Agreement and Payment – I also request copies of all billing statements. Most of the time opposing counsel objects and says I’m not entitled – in one case I compelled and the Court agreed with me. Consequently, I am far more cautious in what I put in my billing statements. What’s your position on the statements? AF

  2. Anne Frances or Greg,

    Have either of you carried to fruition a matter in which statements and documentation as to fees were not provided in discovery, and had opposing counsel assert and/or recover fees at trial?


    1. I had a case in which I tried to compel fee information and the judge denied my request because the other side hadn’t pled for fees. I tried to argue it was still relevant to prove the reasonableness of my fee and the opposing party’s ability to pay fees but the judge didn’t agree.

      On the eve of trial the opposing party sought to amend his complaint to seek fees. The same judge denied that request noting his refusal to provide fee information earlier prejudiced my ability to defend his fee claim. It was very satisfying.

  3. I should have phrased that differently — my question was with regard to matters in which statements/documentation were not provided immediately in discovery but later supplemented.

  4. David Wilson says:

    I have had a couple of cases where the other side has been represented by a firm who uses multiple partners, associates, paralegals, legal assistants and law clerks and they charge what I think are unreasonable fees for the support staff. I just don’t believe that paralegals, law clerks and legal assistants should be entitled to charge $100-$150 an hour. (Some may be entitled to charge that but not all of them) So… I subpoenaed not only the fee agreement and invoices but also the personnel files of all of the people who billed the file. I wanted to see if the “legal assistant” who charges $125/hour has any real experience. Not only did they object to the subpoenas, they could not even believe that I would dare question them. I did not get to see the court’s stance on this issue as the cases settled shortly thereafter with the request for attorney’s fees being reduced substantially. I think that when a firm requests attorney’s fees, anything associated with their billing practices is fair game. I may be wrong but…

  5. Paul Schwartz says:

    Very informative and helpful ! Great tips. Thank you all.

  6. MJ Goodwin says:

    You Charleston guys wear me out just reading about you. These issues do not come up in Anderson.

  7. Linda Hayes says:

    Was involved in a Greenville case where husband had filed a motion to compel against wife for refusing to provide detailed billings on fees during the pendency of the litigation. Judge K. Johnson ruled that disclosure of the detailed bill prior to trial could give away strategies and bifurcated the hearing as to the attorney fees, with the billings to be provided post-trial, and a separate hearing to be held as to atty fees. Husband had been ordered to pay a very substantial amount of fees and costs to wife at a temp hearing (50k). The parties ended up reaching an agreement so it didn’t end up playing out.

    1. I’ve often thought the court should bifurcate the issue of attorney’s fees for after it issues a ruling on the merits but have never been able to convince the court to do so.

  8. Greg – I agree with you on the bifurcation issue – I too have asked for a bifurcated hearing to no avail. Anne Fran

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