Starting Discovery with a Rule 30(b)(6) Deposition into “Manner and Methods” Used to Store ESI “Puts the Cart before the Horse”

Miller v. York Risk Servs. Grp., No. 2:13-cv-1419 JWS, 2014 WL 1456349 (D. Ariz. Apr. 15, 2014)

In this case, Plaintiffs determined that they would “need to discover electronically stored information” and sought first to compel the defendant to “participate in a Rule 30(b)(6) deposition regarding the manner and methods used by  Defendant to store and maintain electronically stored information.”  Plaintiffs argued that taking the deposition first would “allow them to tailor their discovery requests to avoid potential disputes over what may be discovered” and contended that other courts had allowed such discovery for that reason.  The court denied Plaintiffs’ Motion to Compel.

The court’s short analysis included brief exploration of two district court cases from within the Ninth Circuit, one of which was quickly found to be inapplicable, and the other of which presented a distinguishable set of facts.  In the latter case, although the court ordered the defendant to participate in a Rule 30(b)(6) deposition, it did so only after the defendant objected to producing certain requested information on the grounds of undue burden.  Thus, as the present court noted, “a request for substantive discovery preceded the Rule 30(b)(6) deposition which was tailored to answering the question of whether it actually would be unduly burdensome and difficult to retrieve the particular substantive information sought.”

The court turned next to Plaintiffs’ arguments that “the scope of discovery is broad and broad discovery promotes the search for truth” and reasoned that it remained to be determined whether beginning the discovery process with “wide ranging inquiry into the manner and method by which a party stores and manages ESI is a helpful and appropriate approach to obtaining substantive information.”  Indeed, the court indicated its view that “it is not.”  Rather, it was the court’s view that “starting discovery with such an inquiry puts the cart before the horse and likely [would] increase, rather than decrease, discovery disputes.”  Instead, the court reasoned, “discovery should start with inquiries that seek substantive information.”  If, upon such a request, the defendant asserted that retrieval of relevant, electronically stored information would be unduly burdensome, then, the court reasoned, a deposition “of the type Plaintiffs seek” may be appropriate.

Thus, the motion was denied.

A copy of the court’s order is available here.