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.

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