Don't File Documents under Seal Unless "Justified"

Responses to requests for electronically stored information (ESI) can lead to discovery collateral to the merits and instead focused on the responses. Knaggs v. Yahoo!, Inc., No. 15-mc-80281 (N.D. Ca. July 20, 2016), provides a perfect example, albeit in a proceeding unfamiliar to many attorneys.

The petitioner in Knaggs was a British national serving a 20-year sentence in England for conspiracy to import drugs. Evidence offered against him obtained by the prosecution from Yahoo apparently showed that he and his co-conspirators used a Yahoo email account in furtherance of the conspiracy. The petitioner appealed the conviction and argued that the Yahoo-derived evidence violated British law. The petitioner commenced a proceeding under 28 U.S.C. § 1782 in aid of his appeal and sought information from Yahoo about the manner in which Yahoo gathered the evidence it provided. This led to a series of discovery disputes and explanations by Yahoo that the court characterized to be “seemingly conflicting” and that “create[d] a situation where the petitioner cannot be certain he understands the process of information gathering he seeks to challenge” on appeal. On this basis, the court allowed the petitioner to serve a proportionate request for documents and take a limited Rule 30(b)(6) deposition.

What might an attorney take from Knaggs? First, expect federal courtsto actively manage a discovery dispute and limit discovery requests consistent with proportionality. Second, attorneys must appreciate that explanations offered for what a party does and why it does what it does should be reasoned and consistent to avoid discovery about discovery. By the way, don’t be misled by pundits who announce that the scope of discovery has changed. It hasn’t. What is hoped will change will be the unwillingness of attorneys to be cooperative within the adversary system and to exercise proportionality in, among other things, making discovery requests.

_{Ronald Hedges is with Dentons in New York, New York.}

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