E-Discovery Update: Discovery on Discovery Frowned Upon

January 4, 2016

Courts continue to view “discovery on discovery” − or discovery requests seeking information related to counsel’s attempts to preserve, collect and search data − with skepticism. See Banks v. St. Francis Health Ctr., Inc., No. 15-cv-2602, 2015 WL 7451174, at *7-8 (D. Kan. Nov. 23, 2015). In denying such requests, the Banks court observed that “[r]outine discovery into [preservation and collection efforts] is … strongly discouraged.”See Banks, 2015 WL 7451174, at *1, 3, 7-8 (quoting D. Kan., Guidelines for Cases Involving Electronically Stored Information [ESI] (2015)).

The Banks plaintiff sought to compel responses to requests regarding information related to the defendant’s search terms, and the methods used to search certain devices and computer systems. Id. at *7. The plaintiff, who had asserted employment discrimination claims, pointed to the fact that the defendant had produced very few e-mails from the “key players” in the lawsuit, and claimed that this fact warranted “discovery on discovery.” Id .

The court denied the plaintiff’s motion to compel without prejudice stating that she would have to show “specific instances and examples from which the Court could reasonably conclude that Defendant did not make reasonable and adequate efforts to preserve or collect relevant information and thereby justify discovery concerning Defendant’s preservation and collection efforts.” Id. at *8. The court’s opinion was based both on the plaintiff’s failure to attempt to confer with the defendant prior to filing the motion and the lack of evidence to show that defendant’s discovery efforts were insufficient. Id.

Another point worth noting in this decision involves the Rule 34 requirement to state the form a party intends to use for producing ESI in response to document requests. See Banks, 2015 WL 7451174, at *5; and Fed. R. Civ. P. 34(b)(2)(D) (stating that “[i]f the responding party objects to a requested form [of ESI production] – or if no form was specified in the request – the party must state the form or forms it intends to use”). Here, the plaintiff requested that ESI be produced in native format with all metadata and attachments. Id. While the defendant objected to specific requests in its responses, it did not object to the requested format of the production. Id. Because the defendant did not object and had produced other documents in native format, the court held that the defendant must produce the information in the format requested by the plaintiff. Id.

Banks is part of a growing group of courts that have denied parties’ efforts to seek “discovery on discovery” without compelling facts to support the inquiry. The case also serves as a reminder to producing parties to specify in their discovery responses the format in which the producing party wishes to produce ESI and object if the format requested is not the producing party’s preferred format.