United States: Current Approaches To 'Discovery On Discovery' Part I

"We can't go on together with suspicious minds"—that is the premise of "discovery on discovery." With suspicion on the mind, a party may believe that its opponent has wrongfully withheld information, documents, or other materials in discovery, and therefore may seek to have discovery on discovery. Discovery on discovery, also referred to as "discovery about discovery," occurs when one party requests information about an opponent's efforts to preserve, search, identify, and produce relevant documents and information, particularly electronically stored information (ESI), in litigation. This litigation tool may take several forms, spanning from interrogatories to depositions of corporate witnesses, and may seek information about various topics such as a party's litigation holds, document retention and destruction policies, search tools and terms, and document custodians.

Discovery on discovery is a relatively recent concept that has developed and continues to evolve with advancements in technology and eDiscovery. As it weaves its way through the courts, discovery on discovery is met with mixed reviews, receiving both praise for providing a solution when there is reasonable doubt about the sufficiency of an opponent's discovery responses, and scrutiny for extending the costly and time-consuming discovery process. Ultimately, however, the consensus is clear: requests for discovery on discovery should not be granted lightly.

Arguments in Favor of Discovery on Discovery

Parties seeking discovery on discovery in a given case often argue that it is relevant, because discovery has always been open to all "nonprivileged matter that is relevant to any party's claim or defense" and the use of discovery on discovery is no exception. Fed. R. Civ. P. 26(b)(1). Discovery on discovery, they contend, is needed to help determine whether the opposing party has satisfied its obligations to collect and produce responsive information and documents, and to ensure that no relevant materials have been wrongfully withheld from production. See, e.g., Jasso v. Wells Fargo Bank, N.A., No. 2:20-cv-00858-CDS-BNW, 2022 U.S. Dist. LEXIS 164766, at *8 (D. Nev. Sept. 13, 2022) (plaintiffs moved to compel a 30(b)(6) deposition of defendant's corporate witness "to better understand 'the void of . . . emails' pre-2017," a request that "necessarily implicate[d] learning about [defendant's] discovery process in th[e] case").

Advocates' arguments supporting discovery on discovery include fostering transparency and collaboration among the parties. See, e.g., Cahill v. Nike, Inc., No. 3:18-cv-1477-JR, 2020 U.S. Dist. LEXIS 142717, at *14 (D. Or. Aug. 10, 2020). Early disclosure of discovery processes and sources facilitates an open dialogue about realistic discovery needs and reasonable limitations on production. This ultimately promotes an efficient and effective exchange of information and documents, and helps avoid discovery disputes. See, e.g., Cannata v. Wyndham Worldwide Corp., No. 2:10-cv-00068-PMP-VCF, 2011 WL 5598306, at *1-2 (D. Nev. Nov. 17, 2011) (permitting discovery on discovery would "streamline ESI discovery . . . and . . . get the parties to focus on the proper purpose of discovery").

Arguments Against Discovery on Discovery

Parties pushing back on applications for discovery on discovery argue that it exceeds the scope of the Federal Rules of Civil Procedure. Federal Rule of Civil Procedure 26(b)(1) allows for discovery into matters "relevant to any party's claim or defense," and discovery on discovery, they contend, is different because it seeks discovery on a collateral issue—a party's discovery and retention process. See generally Am. W. Bank Members, L.C., v. Utah, No. 2:16-cv-00326-CW-DAO, 2021 U.S. Dist. LEXIS 218480, at *1 (D. Utah Nov. 10, 2021).

Arguments include emphasizing language in Federal Rule of Civil Procedure 26(b)(1), requiring that discovery be "proportional to the needs of the case." They maintain discovery on discovery is impractical and a wasteful use of the parties' resources, as it forces at least one of the parties to endure overly burdensome requests and incur unnecessary expenses. Thus, those opposing discovery on discovery urge the court to exercise its power to limit "discovery [which] is unreasonably cumulative or duplicative or can be obtained [through] less burdensome or less expensive [means]." Fed. R. Civ. P. 26(b)(2)(C)(i). An evaluation of undue burden requires the court to "weigh the burden to the subpoenaed party against the value of the information to the serving party." Travelers Indem. Co. v. Metropolitan Life Ins. Co., 228 F.R.D. 111, 113 (D. Conn. 2005). For opponents of discovery on discovery, the burden of embarking on lengthy discovery into document retention policies, search parameters, and similar process-based information vastly outweighs any potential value this information could have on the merits of the case.

In Part II, we will discuss the Judicial Approach and Standards when assessing whether discovery on discovery is appropriate.

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