Electronic Discovery & Information Governance – Tip of the Month: How to Handle Discovery on Discovery

Scenario

A former employee of a software company sued the company and his former supervisor for employment discrimination. Although the former employee did not identify any problems  with discovery efforts, he sought an order compelling the company to identify all sources of their electronically stored information (“ESI”) to determine (i) where potentially responsive documents were located and (ii) whether the defendants were taking adequate measures to search for and review responsive documents. The general counsel is concerned that, as a large technology company, a request for all ESI sources would include “scores” of systems, from accounting and customer databases to programming-code repositories, and that producing such a data map would be unduly burdensome and costly.

What Is Discovery on Discovery?

In a recent Southern District of New York case on which the scenario is based, the plaintiff claimed that in order to confirm all relevant documents were being searched, he needed to know which sources were being searched as well as whether documents could be or were deleted from the sources and, if so, whether they were available in ESI sources that were not searched. The plaintiff insisted there was “literally” no alternate way to review the sufficiency of the defendants’ search, although the defendants had disclosed the multiple email, chat and collaboration platforms that they planned to search. A judge said the plaintiff’s requests were “discovery on discovery” and denied the plaintiff’s requests.

Most discovery seeks documents and other information related to the allegations and defenses in the litigation. By contrast, “discovery on discovery” (also known as “meta-discovery” or “discovery about discovery”) seeks information on the steps a party took to preserve, identify, collect, process, review and produce documents in response to discovery requests. The discovery sought is collateral to the relevant issues—the sought-after documents and information are not directly relevant to a claim or defense. Discovery-on-discovery requests are often designed to expose some deficiency in an opposing party’s efforts to meet their discovery obligations or to identify the cause of a known deficiency.

Examples of discovery on discovery include discovery requests seeking information about legal hold notices, document retention policies, disaster recovery backup practices, the location of documents and the means and methods used to identify, review and produce responsive discovery materials. Discovery-on-discovery requests typically take the form of interrogatories and 30(b)(6) notices, though they can take any form—both formal and informal—including requests for the production of documents, requests to identify all sources of documents, requests to admit and document preservation demand letters.

How Do the Federal Rules of Civil Procedure Govern Its Permissibility?

The Federal Rules of Civil Procedure (“FRCP”) (and more and more local rules, standing orders and pilot programs) favor mandatory early disclosures, joint discovery plans and similar mechanisms to get parties talking about ESI preservation and discovery early in a case. These are all designed, at least in part, to avoid discovery-on-discovery disputes. But despite best efforts, certain disputes inevitably will require a court’s intervention. And while courts have not adopted a uniform test when deciding discovery-on-discovery disputes, courts, unsurprisingly, often look to FRCP 26 and 37 for guidance on whether such discovery is appropriate under the circumstances.

When faced with a discovery request, counsel are generally not required to disclose the methods in which documents are collected, reviewed and produced. Under Fed. R. Civ. P. 26(g)(A), producing counsel must certify that they made “a reasonable inquiry” and that, to the best of their knowledge, information and belief, the discovery response is “complete and correct at the time it is made.” Further, attorneys, as officers of the court, are expected to comply with Rules 26 and 34 as they search, collect, review and produce documents, including ESI. The FRCP will usually require parties to “meet and confer about production of ESI,” mandating “cooperation in discovery to achieve a just, speedy, and inexpensive determination of the case.” If a party engages in collecting, reviewing and producing ESI without first consulting with the adverse party, they do so at their “peril.” If a court finds production was not reasonable and proportional, a party may have to repeat production or turn over its ESI sources in appropriate circumstances.

How Do Recently Developed Rules Govern Its Permissibility?

When a party seeks discovery on discovery, it must provide an “adequate factual basis” to justify the discovery, and the court must closely scrutinize the request in light of the danger of extending the already costly and time-consuming discovery process ad infinitum. Once the requesting party has shown the relevance of the information sought, or an adequate factual basis for the collateral issue discovery, the responding party then has the burden to justify reducing discovery.  

In  the  Southern District of New York case, the court found that the requesting party had not presented  an adequate factual basis, offering no facts and failing to identify “any gaps in the production of ESI, any reason to believe that documents have been deleted, or any basis for asserting that [the adverse party] is not searching all relevant and reasonably available sources of ESI that would contain material responsive to [the party’s] document request.”

The court found that the requesting party does not need to know all of the adverse party’s sources of ESI to identify whether the adverse party deleted any documents, nor does the requesting party need to identify alternate sources to access potentially deleted documents. Moreover, an impending deposition can provide the requesting party an opportunity to inquire about documents that have been produced, inquire about documents that have not been produced and review the document production for obvious gaps. If the requesting party can create an appropriate record, then the party may  have a basis for discovery on discovery.

Key Takeaways

Given the ever-increasing role of electronic discovery in litigation, we are likely to see more and more discovery on discovery requests. And whether you are the party seeking the discovery or the one trying to avoid it, you should consider that courts:

• Are increasingly requiring parties to make early and meaningful disclosures to minimize the likelihood that disputes about discovery will arise.
• Expect the parties to have met and conferred (often by phone and not just in writing) before entertaining a motion to compel discovery on discovery.
• In deciding discovery-on-discovery disputes, are likely to consider proportionality, relevance, attorney-client privilege and work product protection concerns and whether the requesting party has established an adequate factual basis for an assertion that the producing party’s production is deficient, whether by inadvertent gaps or intentional deletions.
• May not require that a party have knowledge of all of the adverse party’s information and may highlight future opportunities, such as an upcoming deposition, for investigating and possibly resolving issues related to discovery on discovery.