DISCOVERY ON DISCOVERY
With the advent of e-discovery and all that entails, an emerging trend is for litigants to conduct focused discovery on how institutions have gone about identifying and gathering the information that has (or has not) been produced. This panel will explore the types of discovery requests being seen in this space and strategies for responding.
General Overview of the Issues
A discussion of “discovery on discovery” in the general context. What it is, how to spot it as a tactic in litigation, the scope of such discovery, and applicable privileges that are implicated.
- What is Discovery on Discovery?[i]
- Ongoing dispute over the scope of permissible discovery.
- Attorney-client privilege implications.
- Attorney work product doctrine.
- How to spot attempts at “discovery on discovery.”
Written Discovery on Discovery
- Less common than depositions being sought
- Time to prepare and contemplate objections needed
- Motions for protective order
- Assertion of attorney-client privilege and work product doctrine
- Electronically stored information issues[ii]
Depositions
- Person most knowledgeable depositions
- Individual employee depositions
- Non-party deponents
- Common issues and themes that arise during depositions seeking “discovery on discovery”
Case Law Examples in Practice
- Alley v. MTD Products, Inc.[iii]
- Koninklijke Philips N.V. v. Hunt Control Systems, Inc.[iv]
- Sporck v. Peil[v]
General Tips and Pointers
- Utilization of counsel
- Motions for protective order
- Federal Court removal
- Motions to quash subpoenas
- Jurisdiction specific case law
[i] Grenig and Gleisner, III, ediscovery & Digital Evidence, Chapter 12. Spoliation, Section 4: Discovery on Discovery (November 2024 Update); Oot and Shostari, A Litigators Pragmatic Approach to Avoiding Discovery Disasters, 45 No.2 Litigation 48, American Bar Associations, Winter, 2019; Grenig, Electronic Discovery and Records and Information Management Guide, Part III. E-Discovery in Litigation, Chapter 20. Spoliation, Section 9 Discovery on discovery;
[ii] Etish and Basso, 333-DEC N.J. Law. 12, When ‘Something Doesn’t Feel Right’ About the Evidence, New Jersey Lawyer, the Magazine, December, 2021.
[iii] Alley v. MTD Products, Inc., 2018 WL 4689112, W.D. Penn. (Filed September 28, 2018).
[iv] Koninklijke Philips N.V. v. Hunt Control Systems, Inc., 2014 WL 1494517, D. New Jersey (Filed April 16, 2014).
[v] Sporck v. Peil, 759 F.2d 312 (3d Cir. 1985).