Washington sanctions: no safe harbour under CR 11, and no discovery motion without a conference

Two Washington rules impose duties the federal rules soften. CR 11 has no safe harbour — no 21 days to withdraw the offending paper before a sanctions motion can be filed. And CR 26(i) says the court "will not entertain" a discovery motion until counsel have conferred, with a certification in the motion saying so.

Between them they mean a Washington sanctions problem usually arrives without warning, and a Washington discovery motion usually fails on the certificate before anyone reaches the merits.

CR 11: what the signature certifies

CR 11(a) requires every pleading, motion and legal memorandum of a represented party to be dated and signed by at least one attorney of record in the attorney's individual name, "whose address and Washington State Bar Association membership number shall be stated." A self-represented party signs, dates and states an address.

Verification is required for petitions for dissolution of marriage, separation, declarations concerning validity of a marriage, custody, and modification of decrees issued on those petitions. "Other pleadings need not, but may be, verified."

The signature "constitutes a certificate … that the party or attorney has read the pleading, motion, or legal memorandum, and that to the best of the party's or attorney's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances":

(1) it is well grounded in fact; (2) it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law; (3) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

Item (4) is worth pausing on. It puts the certification on your denials, not just your allegations. An answer that denies everything reflexively is a CR 11 problem, and the escape — a denial "specifically so identified" as based on lack of information — has to be marked as such in the pleading.

Unsigned papers — CR 11(a): "If a pleading, motion, or legal memorandum is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant."

No safe harbour

The sanction provision:

If a pleading, motion, or legal memorandum is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or legal memorandum, including a reasonable attorney fee.

Compare FRCP 11(c)(2), which requires a sanctions motion to be served 21 days before it is filed, giving the other side a window to withdraw the paper. Washington's rule has no such provision. The motion can be filed when it is served.

Two other differences from the federal rule follow from the text: the court may act on its own initiative, and sanctions may fall on a represented party as well as on counsel.

Ghostwriting: CR 11(b)

CR 11(b) addresses limited-scope drafting assistance, and few rule sets do.

In helping to draft a pleading, motion or document filed by the otherwise self-represented person, the attorney certifies that the attorney has read the pleading, motion, or legal memorandum, and that to the best of the attorney's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, [the same four certifications as subsection (a)].

So an attorney who drafts for a self-represented litigant makes the full CR 11 certification, even though their name is not on the filing.

And the rule tells you how far you may rely on your client:

The attorney in providing such drafting assistance may rely on the otherwise self-represented person's representation of facts, unless the attorney has reason to believe that such representations are false or materially insufficient, in which instance the attorney shall make an independent reasonable inquiry into the facts.

A workable standard: take the facts as given, unless something tells you not to — and then go and check.

CR 26(g): sign your objections, and no general ones

CR 26(g) applies the same certification machinery to discovery, and adds two drafting rules that decide most Washington objection disputes.

Signing. Every request, response or objection by a represented party is signed by at least one attorney of record; a non-represented party signs their own.

The two rules:

Objections shall be in response to the specific request objected to. General objections shall not be made.

That is as flat as a rule gets. The block of preliminary "general objections" that opens a set of discovery responses in many jurisdictions is not permitted in Washington.

Privilege objections carry a further burden:

A party making an objection based on privilege shall describe the grounds for the objection and, where consistent with subsection (b)(1), shall identify all matters the objecting party contends are subject to the privilege including sufficient information to allow other parties to evaluate the claim of privilege without disclosing protected content.

A privilege log, in substance, required by the objection rule itself.

What the signature certifies — CR 26(g): that after a reasonable inquiry the request, response or objection is

(1) consistent with these rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; (2) not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and (3) not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues.

Certification (3) has no counterpart in CR 11 — it is a proportionality certificate, and it runs on the party serving the discovery as much as on the one resisting it.

CR 26(i): the conference that gates every discovery motion

The court will not entertain any motion or objection with respect to rules 26 through 37 unless counsel have conferred with respect to the motion or objection. Counsel for the moving or objecting party shall arrange for a mutually convenient conference, whether in person or by telephone or by other remote means.

Three points.

It covers rules 26 through 37 — every discovery motion, and objections too, not only motions to compel.

The moving party arranges it. The obligation to set up the conference is on the party who wants to move.

And it must be certified: "Any motion seeking an order to compel discovery or obtain protection shall include counsel's certification that the conference requirements of this rule have been met."

Refusing to confer is itself sanctionable. If the court finds that counsel served with such a motion or objection "has willfully refused or failed to confer in good faith, the court may apply the sanctions provided under rule 37(b)" — the full range, up to dismissal or default.

That last sentence is the answer to a party who will not schedule the call. You do not need a motion to compel first; the failure to confer is its own violation with CR 37(b) consequences.

The motion to compel

Where — CR 37(a)(1): an application against a party goes to the court where the action is pending, "or on matters relating to a deposition, to the court in the county where the deposition is being taken." An application against a non-party deponent "shall be made to the court in the county where the deposition is being taken."

For a remote deposition, CR 30(b)(7) settles which county that is: a deposition taken by remote means "is taken at the place where the deponent is to answer the propounded questions," expressly for the purposes of CR 37(a)(1) and CR 37(b)(1).

What it reaches — CR 37(a)(2): a deponent who fails to answer under CR 30 or 31; an entity that fails to designate under CR 30(b)(6) or 31(a); a party who fails to answer an interrogatory under CR 33; and a party who, in response to a CR 34 request, fails to respond that inspection will be permitted or fails to permit it.

"When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order."

If the motion is denied, the court "may make such protective order as it would have been empowered to make on a motion made pursuant to rule 26(c)."

Evasive answers count — CR 37(a)(3): "an evasive or incomplete answer is to be treated as a failure to answer."

Fees are the default — CR 37(a)(4): if the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated it — or the attorney advising that conduct, or both — to pay the moving party's reasonable expenses including attorney fees, "unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust."

And it runs both ways: if the motion is denied, the same shall-award provision applies against the moving party or the attorney advising the motion, unless the making of the motion was substantially justified.

Disobeying an order

CR 37(b) sets out what the court may do "in regard to the failure," and the list escalates:

(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the disobedient party from introducing designated matters in evidence; (C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceedings or any part thereof, or rendering a judgment by default against the disobedient party; (D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to physical or mental examination; (E) Where a party has failed to comply with an order under rule 35(a) requiring the party to produce another for examination, such orders as are listed in sections (A), (B), and (C) of this subsection, unless the party failing to comply shows that the party is unable to produce such person for examination.

And expenses on top, as the default: "In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him or her or both to pay the reasonable expenses, including attorney fees, caused by the failure," absent substantial justification.

Failure to admit, and total failures

CR 37(c) — cost of proof. Where a party fails to admit the genuineness of a document or the truth of a matter requested under CR 36, and the requesting party thereafter proves it, that party may apply for an order requiring payment of the reasonable expenses of making the proof, including attorney fees. "The court shall make the order" unless the request was held objectionable, the admission was of no substantial importance, the party had reasonable ground to believe it would prevail on the matter, or there was other good reason.

CR 37(d) — total failure. Where a party fails entirely to serve answers or objections to interrogatories, or a written response to a request for inspection, after proper service, the court may act without a prior order. There is nothing to compel where nothing was served.

How Washington compares

A short checklist

Before you file a discovery motion

1. Arrange the conference yourself. CR 26(i) puts that on the moving or objecting party.
2. Put the certification in the motion. Without it the court will not entertain the motion.
3. If the other side will not confer, say so — a willful refusal is sanctionable under CR 37(b) on its own.
4. File in the right court. Non-party deponent disputes go to the county where the deposition is taken — and for a remote deposition that is where the deponent answers.
5. Expect the fee provision to run both ways. CR 37(a)(4) shifts fees against a losing movant as readily as against a losing respondent.

When you respond to discovery

1. Delete the general objections block. CR 26(g) bars it outright.
2. Match each objection to the specific request it answers.
3. On privilege, describe the grounds and identify the matters with enough information for the other side to evaluate the claim.
4. Remember the proportionality certificate — it applies to the requests you serve as well as the objections you make.

Whenever you sign anything

1. Read it, and make a reasonable inquiry. That is what the signature says you did.
2. Look at your denials. CR 11(a)(4) certifies those too, and a lack-of-information denial has to be specifically identified.
3. Do not count on a safe harbour. There is none in Washington; a sanctions motion may be filed the day it is served.
4. If you draft for a self-represented person, you certify it — and you must check facts you have reason to doubt.

Where these rules live

• Wash. CR 11 — Signing and drafting of pleadings, motions, and legal memoranda; sanctions
• Wash. CR 26 — General provisions governing discovery
• Wash. CR 30 — Depositions upon oral examination
• Wash. CR 33 — Interrogatories to parties
• Wash. CR 34 — Producing documents, electronically stored information, and things
• Wash. CR 35 — Physical and mental examination of persons
• Wash. CR 36 — Requests for admission
• Wash. CR 37 — Failure to make discovery: sanctions

This page explains what the rules say. It isn't legal advice, and superior court local rules add their own discovery-motion requirements on top of CR 26(i).