October 30, 2018 Practice Points

Discovery-on-Discovery and Proportionality Battles Require Persuasive Evidence

Don’t just fight the discovery battles, give the judge one or more substantive reasons to deny your opponent the discovery it wants.

By Andrew M. Toft

In Alley v. MTD Products, Inc., et al., 2018WL4689112, (W.D. Penn., Sept. 28, 2018), Mr. Alley was injured while inflating the tire of a snowblower using an air compressor. The plastic rim for the tire burst, injury Alley’s hand. He sued the snowblower’s manufacturer for product liability, alleging that the snowblower was defective. A Rule 30(b)(6) deposition notice Alley served on the defendant and one of Alley’s requests for production of documents were at issue. The defendant moved for a protective order as to both the Rule 30(b)(6) notice and the request for production.

The Rule 30(b)(6) notice identified nine topics regarding the defendants’ methods for storing, creating, retrieving, and retaining ESI that Alley sought in discovery. The court characterized this as “discovery on discovery” and granted the protective order on this issue. The court was very clear that unless a party seeking discovery on discovery shows bad faith on the part of the party from whom this discovery is sought or the unlawful withholding of documents, discovery of the opposing party’s discovery processes would not be permitted. The plaintiff argued that all he wanted was information relevant to the defendants’ claim that plaintiff’s request for production created an undue burden, but the court found that the notice was an impermissible request for information about the defendants’ discovery processes.

With respect to the request for production of documents, the issue was whether the request was proportional to the needs of the case. The request for production sought expert reports, deposition transcripts, and copies of all discovery requests and responses from prior litigation involving the snowblower model that injured the plaintiff. The court considered six factors, but two seemed to carry the day for the defendant. First, the defendant presented evidence in the form of an affidavit from in-house counsel that the cost to produce what was sought would very nearly equal the damages being sought by the plaintiff. The court found that even if the cost of production were overstated by several thousand dollars, the expense of production would still be disproportionately close to the amount in controversy. The second important factor to the court was the defendants providing plaintiff’s counsel with the names of the plaintiffs in all prior litigation involving the snowblower, the courts in which the cases were filed, and the names of the plaintiffs’ attorneys in those cases. Plaintiff’s counsel did not help his client’s case by admitting that he had not investigated the dockets for the cases identified by the defendants to determine whether he could get the documents from online document-filing systems. Further, the defendants also provided plaintiff’s counsel with information about product recalls for the snowblower model that injured Alley. The defendants admitted knowledge of the defect, but were able to use their “cooperation” to deflect potentially expensive discovery.

If you are in a discovery battle, do the homework and be prepared. Will your opponent’s discovery cost too much? Do the research and have a supportable affidavit quantifying the cost. Can you voluntarily produce information that gives your opponent the opportunity to find the discovery from another source on your opponent’s dime rather than your clients? Do so, and you may protect your client from great expense. Make your client look reasonable rather than irrational.

Andrew M. Toft is an attorney in Denver, Colorado.


Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).