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February 3, 2020

Successfully Defend Against Discovery on Discovery Requests

By Robert L. Lindholm, Lucile H. Cohen, Jonathan Drucker

New York Law Journal

Reprinted with permission from the New York Law Journal

As e-discovery has become commonplace in litigation and attorneys have become more sophisticated on the nuances of e-discovery, “process-directed discovery” or “discovery on discovery” (also known as “meta-discovery” or “discovery about discovery”) has also become increasingly common. What is discovery on discovery? It is discovery directed at the manner and efficacy of the discovery process itself. Typically, discovery on discovery seeks information regarding the other side’s storage, collection, review, production, and preservation of documents sought in merits-directed discovery.

Courts, weary of the additional and often significant expense and lengthy delays that discovery on discovery may cause, have uniformly held that a party’s suspicion of discovery deficiencies or misconduct alone is not a sufficient basis for the court to allow litigants to go down the discovery on discovery rabbit hole. When discovery on discovery is sought, “the party seeking the discovery 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.’” Winfield v. City of New York, No. 15-cv-05236 (LTS) (KHP), 2018 WL 840085, at *3 (S.D.N.Y. Feb. 12, 2018). The “adequate factual basis” typically requires the requesting party demonstrate that the responding party acted in bad faith, there is evidence of spoliation, or that the responding party’s production is materially deficient. See, e.g., Hubbard v. Potter, 247 F.R.D. 27, 29 (D.D.C. 2008) (“Speculation that there is more will not suffice… courts have insisted that the documents that have been produced permit a reasonable deduction that other documents may exist or did exist and have been destroyed.”). The Sedona Conference recently recommended that “as a general matter, neither a requesting party nor the court should prescribe or detail the steps that a responding party must take to meet its discovery obligations, and there should be no discovery on discovery, absent an agreement between the parties, or specific, tangible, evidence-based indicia (versus general allegations of deficiencies or mere ‘speculation’) of a material failure by the responding party to meet its obligations.” See The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, 19 Sedona Conf. J. 1, 123 cmt. 6.b.(2018)).