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Process-directed discovery may be unnecessary if parties can establish trust and work cooperatively during the discovery process. This is the theme that emerged from the 2017 Georgetown Advanced eDiscovery Institute panel, “Discovery on Discovery: Both Sides of the V,” moderated by Gil Keteltas (partner, BakerHostetler) on November 17, 2017.

The panelists were Kelly Cullen (senior e-discovery associate, Orrick); Kelley Hempson (manager, forensic, Deloitte Transactions and Business Analytics); Toby Stinson (supervisor, litigation support & technology, Chevron U.S.A.); and Dan Stromberg (e-discovery counsel, Outten & Golden), all of whom brought diverse perspectives on this issue from both sides of the “V.”

At the outset, the panelists agreed that the phrase “discovery on discovery” is an oversimplified characterization of the tension that has arisen in some cases between requesting parties and responding parties. Some responding parties may argue that they are best situated to evaluate the procedures, methodologies, and technologies appropriate for preservation and production and that any discovery related to the process is unwarranted. Some requesting parties may argue that the inability to obtain information about the discovery process makes it difficult, if not impossible, to assess the reasonableness or thoroughness of the discovery response.

Magistrate Judge Craig Shaffer of the Federal District Court of Colorado submitted an article (soon to be published by the Sedona Conference) analyzing this issue in depth for the panel discussion. Judge Shaffer suggests that the debate should be framed in a manner that distinguishes between “merits-directed discovery” (related to claims and defenses) and “process-directed discovery” (related to the manner and efficacy of the discovery process”).

With Judge Shaffer's lexicon in mind, Keteltas posed the question to the panel: Do the Federal Rules of Civil Procedure leave room for process-directed discovery? Cullen responded that the Rules do indeed “leave some room, but this is reined in by proportionality considerations” in Rule 26(b)(1). Stromberg, who often represents the requesting party, responded that “some process-based discovery may be needed to assess proportionality claims.”

Regardless of how one comes down on the debate, the panel unanimously agreed that “informal” discovery, such as the Rule 26(f) meet and confer process, is much preferable to “formal” discovery, such as a Rule 30(b)(6) deposition. Hempson reads the Federal Rules and the 2015 amendment Committee Notes to express a preference for informal discovery. Stinson observed that “formal discovery battles can be costly” and he wants his counsel to cooperate in informal discovery conversations, if at all possible. In some cases, the corporate representative may be less forthcoming in a deposition setting compared to a more cooperative meet and confer between the parties.

The cornerstone of informal discovery is trust. From Stinson's perspective, the ability to “articulate your process and demonstrate that your 'house is in order' builds trust with the requester and the court.” Stromberg says that when a producing party “demonstrates transparency and competence,” he is more inclined to trust a producing party and refrain from formal discovery unless there is a reason to pursue formal discovery—for example, if a dispute arises related to relevance or proportionality. Stinson offered some very practical advice, observing that a production discovery quality control process that “checks for date gaps or missing custodians,” for example, will help demonstrate competence, build trust, and avoid process-based discovery disputes.

If a party feels that it must initiate formal, process-based discovery, Keteltas asked the panel, does timing matter? A Rule 30(b)(6) deposition notice prior to the Rule 26(f) conference makes little sense and can be costly and disruptive, according to Cullen. She said “discovery is a puzzle and if there is a missing piece, then it may be appropriate to go to the court,” if informal consultation fails. Henson observed through her experience working with government agencies that the agencies often have complex systems and it takes time to determine where the data are located. Allegations that an agency is playing “hide the ball” are often misplaced and counterproductive.

In reflecting on process-based discovery disputes, Stinson wonders if they are ever “worth the fight.” As he says, “You can accomplish so much more on a phone call.”

 

Mark Michels is a Managing Director in Deloitte Transactions and Business Analytics LLP. This article contains general information only and Deloitte is not, by means of this article, rendering accounting, business, financial, investment, legal, tax, or other professional advice or services. This article is not a substitute for such professional advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified professional advisor.