Discovery on Discovery: Disputes About a Litigant's Efforts to Search for, Locate, Preserve and Collect Responsive ESI

Much has been written about the expectation of cooperation between parties in litigation. And while cooperation is required in the discovery context, there is no such requirement that litigants be transparent as to how they responded to discovery requests. Counsel should be vigilant in recognizing improper attempts by another party to extend the concept of discovery by demanding transparency.

Most courts will not permit discovery on discovery in the absence of a showing that the responding party acted in bad faith or unlawfully withheld documents. Indeed, courts have routinely denied requests for discovery on discovery based on the requesting party’s “mere speculation” that the responding party has acted improperly in responding to discovery. A requesting party may support a request for discovery on discovery by demonstrating an adequate factual basis, including inconsistencies with the responding party’s production, deposition testimony establishing the failure of a party to implement a litigation hold in a timely manner and/or the absence of documents from key custodians and/or date ranges in a production.

Listen as this experienced panel of litigators addresses discovery on discovery and discusses how to prevent discovery on discovery from derailing the merits of the case, as well as the offensive use of discovery on discovery in potential motions for sanctions pursuant to Federal Rule of Civil Procedure 37(e) or state equivalents.

1. The challenges of seeking discovery on discovery
   1. Sedona Conference Principles 3 and 6
   2. Presumption that the responding party is best situated to respond to discovery
   3. Judicial Treatment of requests for discovery on discovery
   4. Baseline showings needed to pursue discovery on discovery
2. Effective Use of ESI Protocols
3. Objections to discovery on discovery
   1. Relevance/proportionality
   2. Privilege objections
   3. Potential waiver of privilege if produce privileged information
4. Motions to compel
   1. Cooperation and attempts to meet and confer
   2. Establishing strong factual records
   3. Burden of proof
5. Potential sanctions?

The panel will review these and other critical issues regarding discovery on discovery:

• The importance of cooperation and ESI Protocols in avoiding discovery on discovery;
• The potential for offensive use of discovery on discovery and strategic considerations surrounding when/if a litigant may seek discovery on discovery;
• The potential discoverability of litigation holds; and
• The importance of preparing and formulating a defensible discovery plan