December 21, 2017 Articles

Deconstructing “Discovery about Discovery”

What is becoming a catchphrase should instead be a reasonable discussion between requesting and producing parties.

By Hon. Craig B. Shaffer

As cases involving expansive volumes of electronically stored information (ESI) become more common and the challenges of e-discovery more complex, there has been increased focus on whether and to what extent a party may obtain discovery about an opponent’s e-discovery processes and the manner in which a party preserves, identifies, collects, searches, and produces ESI. Some take the view that “discovery about discovery” is inappropriate in most instances and often results in unnecessary expense. Proponents of this position contend that the only valid measure of an effective e-discovery process is the final product of that process; “how” a party chooses to comply with its discovery obligations is immaterial. Requesting parties argue, to the contrary, that an inability to obtain process-directed information makes it difficult, if not impossible, to evaluate the reasonableness and thoroughness of a party’s efforts to search for and produce relevant ESI. While these countervailing views may be driven by anecdotal experience or the “worst-case” fears of litigants and their counsel, the development and implementation of an effective e-discovery process does not proceed in a vacuum and may, in some instances, be a relevant topic of discovery. But “discovery about discovery” threatens to become a catchphrase in lieu of a reasonable discussion between requesting and producing parties.

There is no denying that e-discovery has, and will continue to be, a matter of concern for both requesting and responding parties. It is also true that in the absence of controlling precedent, parties (as well as judges) can find case law to support both sides of the discovery about discovery debate. The burdens and associated costs of preserving, collecting, searching, reviewing, and producing ESI should not be discounted, particularly in asymmetrical litigation. However, those concerns are not effectively framed by sweeping generalizations or a deceptively simple phrase that has the potential to oversimplify issues that are often nuanced and interrelated.

Litigants and the court should distinguish between “‘merits-directed discovery” and “process-directed discovery.” Discovery directed to the merits of the litigation, as a threshold matter, should be framed by the specific elements underlying the claims and defenses advanced by the parties, and focus on issues germane to settlement, dispositive motions, or trial. “Process-directed discovery,” on the other hand, is directed to the manner and efficacy of the production process itself, as measured by Rules 1, 26(b)(1), 26(b)(2)(B), 26(b)(2)(C), and 26(g). Discovery directed toward ESI and the information-gathering and production process should be addressed within the context of the Federal Rules of Civil Procedure, with due consideration for evolving case law and the litigants’ strategic interests.

Principle 6 of the Sedona Principles has long recognized that “[r]esponding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.” Although the Federal Rules charge a producing party with the duty to undertake reasonable efforts to preserve and produce relevant information, Principle 6 correctly acknowledges that there are “many ways in which a party may comply with those obligations” and cautions that “[d]iscovery should not be permitted to continue indefinitely merely because a requesting party can point to undiscovered documents and electronically stored information when there is no indication that the documents or information are relevant to the case, or further discovery is disproportionate to the needs of the case.” However, federal courts should allow process-directed discovery where there is an “adequate factual basis” or a “some showing” that a party’s production is either incomplete or violative of the Federal Rules.

If the goal of discovery is to expedite the disposition of cases, with reasonable and proportional time and expense, a pragmatic approach to discovery is essential. As Chief Justice Roberts noted in his 2015 Year-End Report on the Federal Judiciary, the 2015 amendments were intended, in part, to focus discovery on what is truly necessary to resolve the pending litigation. As the Advisory Committee noted in addressing the 1983 amendment to Rule 26(b)(1): “The purpose of discovery is to provide a mechanism for making relevant information available to the litigants. ‘Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.’” But if litigation is brought in good faith to resolve a pending legal dispute, it should be self-evident that the parties’ claims and defenses will define the outer boundary of relevance in that case. The “needs of the case,” for purposes of Rule 26(b)(1), must be consistent with the goals of Rule 1.

The Federal Rules of Civil Procedure have long recognized that information about a party’s organizational arrangements or filing systems may be discoverable. The 2015 amendment to Rule 26(b)(1) does not expressly authorize discovery concerning the “existence, description, nature, custody, condition, and location of any document or other tangible things, and the identity and location of persons who know of any discoverable matter,” because access to this information remains “deeply entrenched” in discovery practice. The Advisory Committee note recognizes that “[f]raming intelligent requests for electronically stored information, for example, may require detailed information about another party’s information systems and other information resources.” The same committee note acknowledges, however, that this discovery should be permitted “under the revised [Rule 26(b)(1)] when relevant and proportional to the needs of the case.” “[B]road discovery does not mean that the Court need give free reign to parties to request from the other side piles of documents, or terabytes of data, when it is uncertain whether the documents or data contains the information the party seeks.”

Magistrate Judge Francis’s successive rulings in Freedman v. Weatherford International Ltd., provide useful insights into the potential application of process-directed discovery. In his first memorandum and order, Freedman v. Weatherford Int’l Ltd., No. 12 Civ. 2121 (LAK)JCF), 2014 WL 3767034 (S.D.N.Y. July 25, 12 2014), Magistrate Judge Francis started his analysis with Rule 26(b)(1) and the observation that a party may obtain discovery of nonprivileged matter relevant to the parties’ claims and defenses. For purposes of the pending motion to compel, the court concluded that the plaintiffs had not sustained their burden of showing that the requested materials satisfied the Rule 26(b)(1) relevance standard. Judge Francis acknowledged that while “[t]here are circumstances where such collateral discovery is warranted,” the plaintiffs had “not proffered an adequate factual basis for their belief that the current production is deficient.” The court concluded that the plaintiffs’ claims of deficient productions were “too conclusory” to prevail, particularly “[g]iven the absence of a legal basis for [their] request.”

About two months later, Judge Francis entered a second memorandum and order in the same case, Freedman v. Weatherford Int’l Ltd., No. 12 Civ. 2121 (LAK)JCF), 2014 WL 4547039 (S.D.N.Y. Sept. 12 2014). Judge Francis again recognized that:

In certain circumstances where a party makes some showing that a producing party’s production has been incomplete, a court may order discovery designed to test the sufficiency of that party’s discovery efforts in order to capture additional relevant material. However, requests for such “meta-discovery” should be closely scrutinized in light of the danger of extending the already costly and timeconsuming discovery process ad infinitum.

The court concluded that the requested discovery was not proportional to the needs of the case to the extent “the suggested remedy [was] not suited to the task.” In short, the plaintiffs again failed to satisfy their burden of proof under Rule 37(a)(3) to the extent their showing of relevance and proportionality was based on nothing more than assumptions or speculation.

Courts have permitted process-directed discovery in several different circumstances. So, for example, in Burnett v. Ford Motor Co., No. 3:13-cv-14207, 2015 WL 4137847 (S.D. W.Va. July 8, 2015), the defendant moved for a protective order, arguing that the plaintiffs’ proposed Rule 30(b)(6) deposition improperly sought testimony regarding Ford’s document-retention policies and practices, its knowledge of possible spoliation, and “the identity of Ford custodians whose files have been searched for relevant documents and the process by which the custodians searched for documents.” The defendant argued that the plaintiffs sought irrelevant “discovery on discovery” and information protected by the work-product doctrine, which was particularly inappropriate in the absence of any evidence that Ford had “committed discovery abuses.” The plaintiffs insisted, to the contrary, that the requested discovery was necessary “given Ford’s secretive approach to discovery” and deposition testimony suggesting that key Ford employees had conducted only limited or partial searches of their records.

Magistrate Judge Eifert acknowledged that while Rule 26(b)(1) establishes a broad definition of relevance, discovery may be limited under Rule 26(c), Rule 26(b)(2)(C), and the general principles of proportionality. She also highlighted the Sedona Conference Cooperation Proclamation and Rule 26(f), which “encourage cooperation and transparency early in the discovery process.” Judge Eifert noted that “broader ‘discovery on discovery’ may be appropriate and relevant under Rule 26(b) when it aids a party in the presentation of its case.”

When two-way planning does not occur upfront, and questions about the adequacy of the document production subsequently arise, common sense dictates that the party conducting the search must share informationregarding the universe of potentially relevant documents being preserved, and those that no longer exist, as well as the search terms used in collecting relevant documents and the identities of the custodians from whom the documents were retrieved. After all, the party responsible for the search and production has the duty to demonstrate its reasonableness.

The court observed that Ford had not offered any evidence to support its claims of undue burden and continued to “resist sharing any specific facts regarding its collection of relevant and responsive documents,” even as it conceded that its custodians were using various search terms and processes. Judge Eifert concluded that Ford had “cloaked the circumstances surrounding its document search and retrieval in secrecy, leading to skepticism about the thoroughness and accuracy of that process.” In closing, the court allowed the Rule 30(b)(6) deposition to proceed as requested, but deferred any decision on the adequacy of Ford’s search, retrieval, and production process.

If process-directed discovery is permissible under the Federal Rules of Civil Procedure, litigants and jurists must consider when and how to seek that information. Case law can be found to support both sides of the process-directed discovery debate. Those conflicting judicial decisions, however, miss the more critical point: what is the fundamental purpose of discovery. A party should not spend money indiscriminately or focus on facts or issues that are not material to the disposition of the case. Rather, discovery should be pursued to achieve a just, speedy, and inexpensive resolution of the matter.

Discovery requests or Rule 30(b)(6) deposition topics that are based on nothing more than naked speculation, that become fishing expeditions, or smack of gamesmanship do not advance the goals of Rule 1 and should not be granted. However, a prohibition that precludes or drastically circumscribes process-directed discovery creates its own shortcomings. The latter approach will almost certainly morph into motion practice near the end of the pretrial process, when a proportionate and efficient approach to case management may be difficult to achieve and a trial date is jeopardized. Process-directed discovery should be predicated on a thoughtful consideration of strategic considerations, the goals of the Federal Rules, and a factual record that is consistent with well-recognized burdens of proof.


Hon. Craig B. Shaffer is a U.S. Magistrate Judge with the U.S. District Court for the District of Colorado.

This article will appear in a substantially longer form in the January 2018 edition of the Sedona Conference Journal.

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