As e-discovery has become commonplace in litigation and attorneys have become more sophisticated on the nuances of e-discovery, "process-directed discovery" or "discovery on discovery" (also known as "meta-discovery" or "discovery about discovery") has also become increasingly common. What is discovery on discovery? It is discovery directed at the manner and efficacy of the discovery process itself. Typically, discovery on discovery seeks information regarding the other side's storage, collection, review, production, and preservation of documents sought in merits-directed discovery.

Courts, weary of the additional and often significant expense and lengthy delays that discovery on discovery may cause, have uniformly held that a party's suspicion of discovery deficiencies or misconduct alone is not a sufficient basis for the court to allow litigants to go down the discovery on discovery rabbit hole. When discovery on discovery is sought, "the party seeking the discovery must provide an 'adequate factual basis' to justify the discovery, and the court must closely scrutinize the request 'in light of the danger of extending the already costly and time-consuming discovery process ad infinitum.'" Winfield v. City of New York, No. 15-cv-05236 (LTS) (KHP), 2018 WL 840085, at *3 (S.D.N.Y. Feb. 12, 2018). The "adequate factual basis" typically requires the requesting party demonstrate that the responding party acted in bad faith, there is evidence of spoliation, or that the responding party's production is materially deficient. See, e.g., Hubbard v. Potter, 247 F.R.D. 27, 29 (D.D.C. 2008) ("Speculation that there is more will not suffice … courts have insisted that the documents that have been produced permit a reasonable deduction that other documents may exist or did exist and have been destroyed."). The Sedona Conference recently recommended that "as a general matter, neither a requesting party nor the court should prescribe or detail the steps that a responding party must take to meet its discovery obligations, and there should be no discovery on discovery, absent an agreement between the parties, or specific, tangible, evidence-based indicia (versus general allegations of deficiencies or mere 'speculation') of a material failure by the responding party to meet its obligations." See The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, 19 Sedona Conf. J. 1, 123 cmt. 6.b.(2018)).

What's The Harm in Providing Discovery on Discovery? Although counsel's requests may seem harmless, responding to discovery on discovery is risky and potentially problematic. Discovery on discovery is often just the first step in an orchestrated plan to try to obtain evidence of spoliation that would support a sanctions motion. While sanctions may be monetary, Federal Rule 37(e)(2) provides courts with sanctions that may effectively, or actually, be case-ending. Should the court determine that relevant electronically stored information is lost and the other party suffered prejudice from that loss, the court may "instruct the jury that it may or must presume the information was unfavorable to the party" or "dismiss the action or enter a default judgment." See Fed. R. Civ. P. 37(e)(2)(B)-(C). Accordingly, it is important for defense counsel to identify discovery on discovery when requested, and object to the requests. If you fail to object, you may quickly find yourself bogged down in interrogatories, requests for admissions, and Rule 30(b)(6) depositions with an attorney looking to question everything your client has done potentially over a period of many years. A robust defense may prevent you and your client from being put in that position.

Attack Opposing Counsel's Faulty Premises. The best way to avoid a protracted discovery on discovery fight is through an early, informal, and cooperative exchange of information in lieu of formal discovery. Receiving "buy in" from opposing counsel early in the process on these critical issues can save your client substantial time, money, and resources in the long run. However, if despite your best efforts your client is still on the receiving end of discovery on discovery, you should be prepared to respond. If you have had previous informal information exchanges with the opposing party at the outset of the case, remind the opposing party and the court (if applicable) of those discussions. It may be that what the opposing party is complaining about was already addressed months before.

In parallel, counsel should push back on the opposing party's accusation of bad faith, spoliation, or a materially deficient production (or highlight for the court that there is no such allegation). For example, in Freed v. Home Depot U.S.A., plaintiff requested discovery on discovery after alleging that Home Depot failed to produce all the available video footage of plaintiff's slip-and-fall. No. 18cv359-BAS (LL), 2019 WL 582346, at *3-4 (S.D. Cal. Feb. 13, 2019). Home Depot reiterated that there was no other video footage of the alleged incident and offered to produce a Rule 30(b)(6) deponent to testify to that fact. Id. at *5. By reconfirming the non-existence of additional video of the incident, Home Depot was able to neuter plaintiff's bad faith claim and negate any need for discovery on discovery. Id.

Counsel should also be prepared to remind the opposing party and the court that nothing in the discovery rules requires perfection. In large scale document productions, mistakes may occur and such mistakes do not necessarily translate into bad faith, spoliation, or a materially deficient production. See Radiologix v. Radiology & Nuclear Med., No. 15-4927-DDC-KGS, 2019 WL 354972, at *13 (D. Kan. Jan. 29, 2019) (declining to impose sanctions and acknowledging that "reasonable and responsible people may make mistakes" when collecting millions of documents and producing hundreds of thousands of documents); Memry Corp. v. Kentucky Oil Tech., N.V., No. C04-03843, 2007 WL 832937, at *4 (N.D. Cal. March 19, 2007) (noting that"[w]hile [defendant's] document production may not have been absolutely perfect, the flaws do not rise to the level of necessitating production of hard drives" for a forensic inspection). The Advisory Committee Notes to Rule 37(e) of the Federal Rules of Civil Procedure has recognized the same, noting that "perfection in preserving all relevant electronically stored information is often impossible." See Fed. R. Civ. P. 37(e) Adv. Comm. Notes (2015); Orbit One Commc'ns v. Numerex, 271 F.R.D. 429, 441 (S.D.N.Y. 2010) ("[S]ome data will be lost in virtually any case.").

Utilize Rule 26's Relevancy and Proportionality Principals in Your Favor. In December 2015, Federal Rule 26(b) was amended to read: "Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case … ." (emphasis added). The relevancy prong and the proportionality prong apply with equal force to both types of discovery—merits-directed discovery and process-directed discovery. These relatively straightforward requirements for Rule 26 are being employed with increasing frequency to rein in process-directed discovery. For example, even setting aside issues of privilege, it can generally be argued that discovery about a party's document retention policies is not relevant to a claim or defense in the litigation. See, e.g., India Brewing v. Miller Brewing Co., 237 F.R.D. 190, 192 (E.D. Wis. 2006) (denying plaintiff's motion to compel production of a document retention policy on the ground that it is not relevant to a claim or defense). Similarly, for proportionality, a simple affidavit from in-house counsel estimating the cost of complying with the opposing party's discovery on discovery request can demonstrate that the compliance cost is equal to, or greater than, the damages the opposing party seeks and may be highly persuasive to the court in denying the request. See Alley v. MTD Prods., No. 3:17-cv-3, 2018 WL 4689112, at *4 (W.D. Penn. Sept. 28, 2018) ("[A] comparison of the amount in controversy to the cost of complying with Plaintiff's discovery requests weighs against production … . Even if Defendants overstated the cost of complying with Plaintiff's discovery request by several thousand dollars, the cost of producing these documents would still be disproportionately close to the amount in controversy in this case."). The proportionality that is now built into the Federal Rules of Civil Procedure provides a strong defense against costly or time-consuming discovery on discovery requests.

Conclusion

Formal discovery on discovery is often expensive to defend against and may lead to never-ending requests from the opposing party culminating with a motion requesting sanctions for spoliation. You will be much more likely to succeed in defending against a discovery on discovery attack if you have already been transparent about the discovery process early in the litigation, and if you have received some input and cooperation from opposing counsel regarding your proposed discovery plan. Should informal and cooperative information sharing fail; however, it is critical that you undermine the opposing party's argument of bad faith or spoliation. Finally, returning to the text of Rule 26 and its principals of relevancy and proportionality may also help convince the court that the opposing party's requested discovery on discovery is outside permissible bounds.

Robert L. Lindholm and Lucie H. Cohen are partners, and Jonathan Drucker is of counsel member, at Nelson Mullins.