Avoid “Discovery About Discovery” with Cooperation

Ruiz-Bueno, III v. Scott, No. 2:12-cv-0809, 2013 WL 6055402 (S.D. Ohio Nov. 15, 2013)

In this case, Plaintiffs moved to compel answers to their questions about Defendants’ efforts to respond to Plaintiffs’ discovery requests, including what procedures were undertaken to search for responsive electronically stored information.  Defendants objected, arguing that such information was not within the scope of discovery.  Following its discussion of whether “discovery about discovery [is] ever permissible” (it is), the court turned to the circumstances of this case and ordered Defendants to respond.  In its analysis, the court spent significant time extolling the virtues of cooperation.

Plaintiffs sought to compel Defendants’ response to two questions: “(1) what efforts they made to comply with plaintiffs’ previous discovery requests, and (2) what procedures or methods were used to search for responsive electronically stored information.”  Defendants objected to responding on the grounds that the information sought was “irrelevant,” “not related to any of the claims or defenses in this case,” and “not likely to lead to the discovery of admissible evidence.”  In short, Defendants asserted that the requested information was outside of the scope of discovery and had “no bearing on any aspect of this case.”

Taking up Plaintiffs’ motion, the court first considered whether “discovery about discovery” is ever permissible and concluded, following a brief review of Rule 26(b) and some examples of relevant case law, that it is.

Turning, then, to the facts of this case, the court noted that it appeared that “plaintiffs’ distrust of the diligence with which defendants searched for ESI [was] at the heart of the current dispute” and “infer[red]” that Defendants resisted responding to Plaintiffs’ interrogatories not only because they thought the information requested irrelevant, but also because they felt they had satisfactorily addressed any concerns.  The court went on:

In an ideal world (a situation which apparently does not exist here), these types of disputes would never be presented to the Court because counsel would have recognized, early in the case, the potential for disagreements about proper search protocols, and would have actively sought to avoid such disagreements through collaboration.  That concept appears in Fed.R.Civ.P. 26(f), which requires the parties to meet and confer early in the case about, among other matters, discovery, and, more specifically, to discuss “any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced….”  Rule 26(f)(3)(C).  That discussion can and should include cooperative planning, rather than unilateral decision-making, about matters such as “the sources of information to be preserved or searched; number and identities of custodians whose data will be preserved or collected …; topics for discovery; [and] search terms and methodologies to be employed to identify responsive data….”  Milberg LLP and Hausfeld LLP, “E–Discovery Today: The Fault Lies not in Our Rules …,” 4 Fed. Cts. L.Rev. 131, 163 (2011).  When that occurs, each party is able to exert some measure of control over the e-discovery process, and, in turn, to have some measure of confidence in its results.

In the present case, rather than cooperating, Defendants were, apparently, “reluctant to share any of that information” and instead explained only that “the lack of ESI in this case [was] due to the relatively infrequent use of email within the Sherriff’s office” and that “each defendant was asked (twice, according to counsel’s email) to produce his or her relevant emails.”  (Commenting on the propriety of this approach, the court noted that it could be argued that the Sherriff’s office or litigation counsel “should undertake a more comprehensive search of the email database rather than simply relying on 50 different employees to search emails in some unspecified manner,” and went on to note the lack of information provided regarding how each defendant conducted their search, e.g., by keyword, by “searching by sender or recipient,” etc. and whether they each searched in the same way.)

Returning to its discussion of how the impasse between the parties could have been avoided, the court advised:

What should have occurred here is that either as part of the Rule 26(f) planning process, or once it became apparent that a dispute was brewing over ESI, counsel should have engaged in a collaborative effort to solve the problem.  That effort would require defendants’ counsel to state explicitly how the search was constructed or organized. Plaintiffs’ counsel would then have been given the chance to provide suggestions about making the search more thorough.  That does not mean that all of plaintiffs’ suggestions would have to be followed, but it would change the nature of dispute from one about whether plaintiffs are entitled to find out how defendants went about retrieving information to one about whether those efforts were reasonable.  That issue cannot be discussed intelligently either between counsel or by the Court in the absence of shared information about the nature of the search.

The court also dismissed the premise that collaboration was an “intrusion into privileged areas” or “less than zealous advocacy,” concluding that “[s]imply put, discussing how to go about searching for and producing ESI does not ordinarily or necessarily entail revealing confidential client communications.”  The court went on to cite the leading case on cooperation—Mancia v. Mayflower, 253 F.R.D. 354 (D. Md. 2008):

It cannot seriously be disputed that compliance with the “spirit and purposes” of these discovery rules requires cooperation by counsel to identify and fulfill legitimate discovery needs, yet avoid seeking discovery the cost and burden of which is disproportionally large to what is at stake in the litigation.  Counsel cannot “behave responsively” during discovery unless they do both, which requires cooperation rather than contrariety, communication rather than confrontation.

Ultimately, although it acknowledged that “discovery about discovery” may not be appropriate in every case, the court ordered Defendants to respond to Plaintiffs’ interrogatories.  The order was “based, at least in part, on the fact that plaintiffs’ concern about the volume of ESI appear[ed] to be reasonably grounded; the fact that defendants were less than forthcoming with information needed to make further discussion of the issue a collaborative rather than contrarian process; and the need to get this case moving toward resolution.”

The court concluded its opinion with the warning that cooperation would be expected in future and that, “[i]f not, the court [would] reluctantly consider whether sanctions are needed to force the type of cooperation which the Rules of Civil Procedure require.”