Current Approaches to “Discovery on Discovery”

“We can’t go on together with suspicious minds”—that is the premise of “discovery on discovery.” With suspicion on the mind, a party may believe that its opponent has wrongfully withheld information, documents, or other materials in discovery, and therefore may seek to have discovery on discovery. Discovery on discovery, also referred to as “discovery about discovery,” occurs when one party requests information about an opponent’s efforts to preserve, search, identify, and produce relevant documents and information, particularly electronically stored information (ESI), in litigation. This litigation tool may take several forms, from interrogatories to depositions of corporate witnesses, and may seek information about various topics, such as a party’s litigation holds, document retention and destruction policies, search tools and terms, and document custodians.

Discovery on discovery is a relatively recent concept that has developed and continues to evolve with advancements in technology and e-discovery. As it weaves its way through the courts, discovery on discovery has met with mixed reviews, receiving both praise for providing a solution (when there is reasonable doubt about the sufficiency of an opponent’s discovery responses) and scrutiny (for extending the costly and time-consuming discovery process). Ultimately, however, the consensus is clear: Requests for discovery on discovery should not be granted lightly. 

Arguments in Favor of Discovery on Discovery

Parties seeking discovery on discovery in a given case often argue that it is relevant, because discovery has always been open to any “nonprivileged matter that is relevant to any party’s claim or defense” under Federal Rule of Civil Procedure 26(b)(1), and the use of discovery on discovery is no exception. Discovery on discovery, they contend, is needed to help determine whether the opposing party has satisfied its obligation to collect and produce responsive information and documents, and to ensure that no relevant materials have been wrongfully withheld from production. See, e.g., Am. W. Bank Members, L.C. v. Utah, No. 2:16-cv-00326-CW-DAO, 2021 U.S. Dist. LEXIS 218480, at *1 (D. Utah Nov. 10, 2021) (granting limited discovery on discovery where defendants conceded emails “were purged after they received the notice of claim,” and plaintiff “met its burden to establish reason to doubt, by adequate factual basis beyond mere speculation, the sufficiency of [defendants’] production of [] emails”).

In addition, advocates of discovery on discovery contend that it furthers transparency and collaboration among the parties. See, e.g., Cahill v. Nike, Inc., No. 3:18-cv-1477-JR, 2020 U.S. Dist. LEXIS 142717, at *14 (D. Or. Aug. 10, 2020). Early disclosure of discovery processes and sources facilitates an open dialogue about realistic discovery needs and reasonable limitations on production. This ultimately promotes an efficient and effective exchange of information and documents, and helps to avoid discovery disputes. See Hon. Craig B. Shaffer, “Deconstructing ‘Discovery About Discovery’,” 19 Sedona Conf. J. 215 (2018) (“[T]he best solution in the entire area of electronic discovery is cooperation among counsel. . . . An important aspect of cooperation is transparency in the discovery process.”).

Arguments Against Discovery on Discovery

Opponents of discovery on discovery argue that it exceeds the scope of the Federal Rules of Civil Procedure. Federal Rule of Civil Procedure 26(b)(1) allows for discovery into matters “relevant to any party’s claim or defense,” and discovery on discovery, they contend, is different because it seeks discovery on a collateral issue—a party’s discovery and retention process. See generally America West Bank Members, L.C., 2021 U.S. Dist. LEXIS 218480, at *1.

Parties opposing discovery on discovery also emphasize the important but often overlooked subsequent language in Federal Rule of Civil Procedure 26(b)(1), which requires that discovery be “proportional to the needs of the case.” They maintain that discovery on discovery is impractical and wasteful because it forces at least one of the parties to endure overly burdensome requests and incur unnecessary expenses. In addition, the practice could lead to production of irrelevant documents, further slowing the timeline of litigation. Thus, those opposing discovery on discovery urge the court to exercise its power to limit discovery that is “unreasonably cumulative or duplicative or can be obtained [through] less burdensome or less expensive [means].” Fed. R. Civ. P. 26(b)(2)(C)(i). An evaluation of undue burden requires the court to “weigh the burden to the subpoenaed party against the value of the information to the serving party.” Travelers Indem. Co. v. Metro. Life Ins. Co., 228 F.R.D. 111, 113 (D. Conn. 2005). For opponents of discovery on discovery, the burden of embarking on lengthy discovery into document retention policies, search parameters, and similar process-based information vastly outweighs any potential value this information could add to the merits of the case.

The Judicial Perspective

Courts have recognized the drawbacks of discovery on discovery and have sought to regulate the practice to prevent the “danger[s] of extending the already costly and time-consuming discovery process ad infinitum.” America West Bank Members, L.C., 2021 U.S. Dist. LEXIS 218480, at *5. As a baseline, many courts have held that failure to show a “material deficiency” is grounds for denial of a request for discovery on discovery. Koninklijke Philips N.V. v. Hunt Control Sys., Inc., No. 11-cv-03684, 2014 WL 1494517, at *4 (D.N.J. Apr. 16, 2014); see also British Telecomms. PLC v. IAC/Interactivecorp, No. 18-366-WCB, 2020 U.S. Dist. LEXIS 37271, at *21 (D. Del. Mar. 4, 2020); Slocum v. Int’l Paper Co., No. 16-12563, 2019 U.S. Dist. LEXIS 231610, at *9–10 (E.D. La. Mar. 15, 2019). These courts have found that citation to a single isolated deficiency, without evidence that the opposing party failed to act in good faith, is insufficient to constitute a “material deficiency” warranting discovery on discovery. Larsen v. Coldwell Banker Real Estate Corp., No. SACV 10-00401, 2012 WL 359466, at *7 (C.D. Cal. Feb. 2, 2012). In one case, a party’s identification of 18 previously undisclosed but responsive documents was still not enough to open the door to discovery on discovery, in light of the relative size of the earlier document production (spanning several million pages) and the absence of any showing of purposeful withholding of information. Freedman v. Weatherford Int’l Ltd., No. 12 Civ. 2121 (LAK)(JCF), 2014 WL 4547039, at *2–3 (S.D.N.Y. Sept. 12, 2014). Some courts also have considered a party’s conduct in deciding whether to allow discovery on discovery. A “showing of bad faith” or an “unlawful withholding of documents” has been deemed sufficient grounds for closer discovery into a party’s discovery procedures. Alley v. MTD Prods., No. 3:17-cv-3, 2018 U.S. Dist. LEXIS 167006, at *5 (W.D. Pa. Sept. 28, 2018). Others have applied a general “good cause” standard, which suggests that something other than a material deficiency, bad faith, or unlawful withholding might justify discovery on discovery in a given case. See, e.g., Brewer v. BNSF Ry. Co., No. CV-14-65-GF-BMM-JTJ, 2018 U.S. Dist. LEXIS 24402, at *4 (D. Mont. Feb. 14, 2018) (good cause needed to support request for discovery on discovery).

What is clear from these cases is that regardless of the exact standard applied, courts almost uniformly place the burden on the requesting party to demonstrate that discovery on discovery is needed. See, e.g., Enslin v. Coca-Cola Co., No. 2:14-cv-06476, 2016 U.S. Dist. LEXIS 193556, at *2 (E.D. Pa. June 8, 2016) (“[A] requesting party . . . bears the burden of showing that a responding party’s production of ESI was inadequate and that additional efforts are warranted.”). And doing so is not an easy task. For example, the court in Orillaneda v. French Culinary Institute required that the requesting party provide more than “mere generalities” about the alleged deficiency and instead put forth “specific statements” about its nature and circumstances to warrant an expedition into procedure-related discovery. No. 07 Civ. 3206, 2011 U.S. Dist. LEXIS 105793, at *18–19 (S.D.N.Y. Sept. 19, 2011); see also, e.g., Cahill, 2020 U.S. Dist. LEXIS 142717, at *13 (requiring the proponent to articulate an “adequate factual basis” for the discovery). Courts also have routinely denied discovery on discovery where the proponent points to only a “theoretical possibility” or speculation that additional information or documents may exist. British Telecommunications, 2020 U.S. Dist. LEXIS 37271, at *22  (citing Hubbard v. Potter, 247 F.R.D. 27, 31 (D.D.C. 2008)); Orillaneda, 2011 U.S. Dist. LEXIS 105793, at *6; see also Baker v. Walters, No. 3:22-cv-552-M, 2023 U.S. Dist. LEXIS 13303, at *39 (N.D. Tex. Jan. 26, 2023) (holding that disagreement with a discovery response is not a recognized ground for compelling discovery).

A Practical Approach to Discovery on Discovery

Given these hurdles to obtaining discovery on discovery, and the burdens such discovery places on the parties and the litigation, the best practice is to establish procedures at the outset that prevent any party from developing a “suspicious mind.” Parties should engage in productive meet and confers early and often to discuss the scope of discovery, including, in particular, discovery of ESI. Agreed-upon ESI protocols governing the manner and format of production of ESI can be helpful in that regard. If disagreements do arise, know that there is no uniform approach to discovery on discovery, and whether it will be allowed in a given case will be highly dependent on the judge and the specific situation. Therefore, it is good practice to familiarize yourself with your judge’s preferences and approach to discovery, including the judge’s stance on discovery on discovery. The approach that is most widely adopted by courts, as well as most practical, is to disallow discovery on discovery unless there are proven material deficiencies or bad faith (or both) in an opposing party’s production that warrant a foray into discovery processes and procedures.