E-Discovery Update: “Discovery on Discovery”

March 2, 2015

As discovery has evolved into an electronic undertaking, large corporations increasingly find themselves defending their efforts to comply with the discovery requests of skeptical opposing counsel. It is becoming common for plaintiffs to seek “discovery on discovery,” or as one court called it, “meta-discovery.” Freedman v. Weatherford Int’l, No. 12 Civ. 2121, 2014 WL 4547039, at *2 (S.D.N.Y. Sept. 12, 2014). Fortunately, courts have received these requests with trepidation, and most refuse to allow “discovery on discovery” without evidence of spoliation.

The key to permissible discovery requests is relevancy. See Fed. R. Civ. P. 26(b)(1) (“[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense”). Discovery about a party’s document retention policies is not relevant to a claim or defense. See, e.g., India Brewing, Inc. 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). In fact, courts typically require a threshold showing that discovery abuse has occurred before allowing discovery about a party’s efforts to comply with discovery requests or its document retention policies. See, e.g., Martin v. Allstate Ins. Co., 292 F.R.D. 361, 363-64 (N.D. Tex. 2013) (denying request for 30(b)(6) deposition on similar topics as irrelevant and overbroad); and Cunningham v. Std. Fire Ins. Co., No. 07-cv-02538, 2008 WL 2668301, at *5 (D. Colo. July 1, 2008) (granting motion for protective order preventing the deposition of a witness on the storage and preservation of backup e-mails as not relevant to the claims). Such discovery is deemed “discovery on discovery” and, as one court said, should be “closely scrutinized in light of the danger of extending the already costly and time-consuming discovery process.” Freedman, 2014 WL 4547039, at *2.

When “discovery on discovery” is sought in the form of a 30(b)(6) deposition, requests pertaining to preservation and collection efforts, or even retention policies, the receiving party should strongly consider objecting to such requests. This type of discovery is not related to the claims or issues in the case and, absent evidence of spoliation, is not within the proper scope of discovery.