Disputes over e-discovery are ubiquitous in modern complex litigation. Many times, these disputes are rooted in allegations that a party attempted to frustrate production by withholding evidence or inappropriately asserting privileges to prevent disclosure of relevant materials. Less often do these disputes focus on the sufficiency of the processes used by a party to identify relevant documents.¹

This may be due, in part, to the fact that the Federal Rules of Civil Procedure do not prescribe the processes that a party must use to identify relevant materials.² While courts have interpreted Rule 34 of the Federal Rules of Civil Procedure to require parties to “undertake reasonable efforts to identify and produce responsive, non-privileged material in [their] possession, custody, or control,”³ the Rule does not set forth specific guidelines or requirements for how a party must conduct its searches to produce these materials.⁴

Even so, in some cases, parties have sought to compel production of “discovery on discovery”—that is, discovery of materials meant to test the sufficiency of the discovery methods used by a responding party. These were the circumstances in Freedman v. Weatherford International, a case recently decided by Magistrate Judge James C. Francis in the Southern District of New York.⁵