Courts have recognized the perils 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." Am. W. 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 Telecoms. 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 eighteen 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. Sep. 28, 2018). Others have applied a general "good cause" standard, which suggests 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 necessary. 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."). Meeting this burden is no easy task. For example, the court in Orillaneda v. French Culinary Inst. 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 Telecoms. PLC, 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 the practice places on the parties and litigation, the best practice is to establish procedures at the outset that prevent any party from getting 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 their 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 and/or bad faith in an opposing party's production that warrant a foray into discovery processes and procedures.
Copyright ©2023. Published in the Mass Torts Litigation Newsletter (Spring 2023), by the American Bar Association.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
