The very phrase, “discovery on discovery,” suggests something improper. And so it is no surprise that parties resisting discovery, whether by way of requests for production, interrogatories, or depositions, often complain that the discovery is inappropriate “discovery on discovery.” Given the adversarial nature of civil litigation, the expectation for broad discovery, and the complexities inherent to e-discovery, it is almost inevitable that parties will disagree on how much detail about their processes should be shared with each other during discovery (including meet and confers). Judges are thus often called upon to resolve the issue: Is the “discovery on discovery” complaint valid or is the request, including one seeking information about preservation, collection, or search-and-review efforts, legitimate given the facts of the case?

A recent set of cases demonstrates that judges are well aware of this dance between adversaries and have established a set of standards to determine when requests labeled “discovery on discovery” are appropriate. Thus, although courts prefer that parties cooperatively work out such issues on their own—and in general will appropriately defer to a producing party’s ability to determine its own reasonable and proportional discovery efforts—courts will authorize so-called “discovery on discovery” when a moving party provides an adequate factual basis and does not rely on mere suspicion or speculation. A few recent decisions illustrate this approach.

Some Recent Decisions