Another Court Approaches Discovery on Discovery with Skepticism

Victoria Freed slipped and fell in a Southern California Home Depot store in October 2016. Freed v. Home Depot U.S.A., Inc., No. 18-cv-359, 2019 WL 582346 (S.D. Cal. Feb. 13, 2019). In discovery in her personal-injury lawsuit, Freed came to believe that Home Depot had video evidence of her injury that it had failed to produce. To test the completeness of Home Depot’s production, Freed served a subpoena on Elizabeth G., the paralegal who had verified Home Depot’s discovery responses. Undoubtedly concerned about being pulled down into a costly spiral of discovery on discovery, Home Depot moved to quash the subpoena.

The court granted the motion. Significantly, the court noted the lack of compelling argument for why Elizabeth G. should be required to attend a deposition more than 2,000 miles from her home in Atlanta, particularly where Home Depot confirmed the absence of additional video and had offered to produce a Rule 30(b)(6) deponent on the topic. Furthermore, the court was troubled by Freed’s failure to address Home Depot’s arguments about “discovery on discovery,” the work-product doctrine, and attorney-client privilege.

Without knowing more about the underlying dispute, it is easy to attribute the court’s decision to the insubstantiality of Freed’s argument. But that would be a mistake. Home Depot did two clever things to blunt Freed’s chances of prevailing. First, Home Depot confirmed for the court that Freed’s argument for Elizabeth G.’s deposition—that Home Depot had failed to produce a responsive video—rested on a false assumption. And second, Home Depot offered to produce a Rule 30(b)(6) deponent on the issue.

Neither of Home Depot’s concessions was terribly costly. The lesson here, then, is how Home Depot used concessions to enhance its credibility with the court and avoid expensive and potentially precedent-setting discovery.

Joseph V. Schaeffer is with Spilman Thomas & Battle, PLLC in Pittsburgh, Pennsylvania.

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