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Litigation is a complicated game of claims and defenses, requiring the court’s attention on the merits. Requesting parties frequently attempt to distract the court with claims unrelated to the merits in an effort to take their eyes off the ball. Parties are seeking discovery of unrelated, overbroad information that courts have repeatedly found to be outside the bounds of what is permitted by the Federal Rules of Civil Procedure.

Be prepared to blow the whistle.

Requesting Party Red Flags

In an effort to take the focus of the litigation off the merits, requesting parties use strategies to gain access to your organization’s information governance playbook. During the discovery state of litigation, broad requests should trigger a responding party’s awareness of potential risk associated with discovery on discovery and non-merit-based inquiries. While a producing party may agree to discuss certain standard operating procedures and policies, courts regularly frown upon this short of inquiry. In re Jemsek Clinic, P.A., Nos. 06–31766, 06-31986, 2013 WL 3994666, at *7 (Bankr. W.D.N.C. Aug. 2, 2013) (denying motion to compel production of plaintiffs’ document-retention policies because they were not relevant to any claims or defenses and rejecting request where defendants’ admitted “purpose of these inquiries [was] to attempt to develop the spoliation issue”); Cunningham v. Standard Fire Ins. Co., No. 07-cv-02538-REB-KLM, 2008 WL 2668301, at *5 (D. Colo. July 1, 2018) (granting defendants’ motion for protective order because document-retention practices were irrelevant to the claims); India Brewing, Inc. v. Miller Brewing Co., 237 F.R.D. 190, 193 (E.D. Wis. 2006) (denying plaintiff’s motion to compel production of defendant’s document-retention policy because it was not relevant to a claim or defense). Burden aside, this clearly extends beyond the claims and defenses of any litigation.

For example, a requesting party attempting to shift the focus of the litigation requests:

ALL DOCUMENTS RELATING TO litigation holds concerning [Party], whether instituted for purposes of this litigation or prior litigation. If a litigation hold was initiated pursuant to prior litigation RELATING TO [PARTY] please state if, and if so when, any such hold was lifted.

YOUR document retention policies from 1985 to the present, including all policies RELATING TO the assimilation of information from acquired or merged companies.

Any and all data that relate to your document or ESI retention or destruction policies, including but not limited to communications which sufficiently identify the steps taken by or on behalf of you to preserve documents, ESI, and all data that are or may be discoverable in this action. This request includes, but is not limited to, policies for: paper documents, databases, electronic mail, electronic documents, voicemail, instant messaging and all data relevant to this action.

In this example, the requesting party seeks “all documents” “whether instituted for purposes of this litigation or prior litigation,” document retention policies over the course of thirty-five years, and “any and all data [relating] to [] document or ESI retention or destruction policies.” Courts have regularly frowned upon requests for “all” or “any” documents, specifically referencing Federal Rule of Civil Procedure 26’s proportionality requirement. Caves v. Beechcraft Corp., Case No. 15-CV-125-CVE-PJC, 2016 WL 355491 (N.D. Okla. Jan. 29, 2016) (denying motion to compel and sustaining defendant’s objections to: (i) document requests seeking “any and all” testimony concerning any “other litigation” as “clearly objectionable” because “[n]either Defendants nor the Court should have to guess what Plaintiff is really seeking. Nor is it the Court’s job to redraft Plaintiff’s discovery requests;” and (ii) document request for “all correspondence between Defendants and any and all regulatory agencies” because such a request “does not identify with reasonable particularity what is being sought” and was unlimited in temporal scope); Toranto v. Jaffurs, No. 16-cv-1709, 2018 WL 6110383, at *1 (Nov. 20, 2018) (denied plaintiff’s motion to compel “all communications between [defendant] any person” over the course of three years because plaintiff alleged only a conspiracy). The American Bar Association commented on Toranto, stating that the lesson from this case is that after 25 years, Rule 26’s proportionality requirement “finally has some bite.” See Proportionality Has Some Bite,  Joseph V. Schaeffer, American Bar Association (March 1, 2019). Language such as “any” and “all” should trigger a responding party’s awareness for the true intentions of the requesting party.

In the example above, the requesting party seeks ESI retention or destruction policies. More companies are developing strong information governance practices that include records and information management, information security and data privacy. Companies are even developing policies and procedures that stretch beyond information governance. Requesting parties usually see these policies as a potential roadmap to discovery on discovery. However, courts have consistently held that document-retention policies are not discoverable. For example, in In re Abilify (Aripiprazole) Prods. Liab. Litig., No 3:16-md-2734, 2017 WL 4399198, at *8 (N.D. Fla. Sept 29, 2017), the court held that the defendants’ document retention policies were not relevant and rejected plaintiffs’ request that defendant produce their retention policies so that plaintiffs could seek gaps in the defendants’ document production. Also, in Fish v. Air & Liquid Sys. Corp., No. GLR-16-496, 2017 WL 697663, at *15 (D. Md. Feb. 21, 2017), the court highlighted that “”discovery on discovery” is not an appropriate topic for discovery and numerous courts have disallowed such discovery.” Your organization’s retention or destruction policies should be safeguarded, and not thrown openly into litigation .

How To: Protect Your Record Management Policies

The Federal Rules of Civil Procedure is your friend. Federal Rule 26(b) now lives in the world of post-2015 Federal Rule Amendments. Since Oxbow Carbon  & Minerals, LLC, courts have shifted away from the proportionality factor outlined in the rule itself, and instead weigh all six factors equally:

  1. The importance of the issues.
  2. The amount in controversy.
  3. The parties’ relative access to relevant information.
  4. The parties’ resources.
  5. The importance of the discovery requested in resolving the issues.
  6. Whether the burden or expense of the proposed discovery outweighs the likely benefit.

In Oxbow, defendants requested documents belonging to plaintiff’s CEO, alleging relevant and unique information responsive to their requests. Plaintiffs responded that this production would be unduly burdensome and disproportionate to any likely benefit to the defendants. Judge Harvey noted that courts must weigh all six factors, rather than exclusively rely on burden and expense and exclude the other factors. Oxbow Carbon & Minerals, LCC v. Union Pac. R.R. Ci., 322 F.R.D. 1 (D.D.C. Sept. 11, 2017). The benefit of analyzing the balance of all six factors outlined in Federal Rule 26 is it keeps the litigation on track. Federal Rule 26 provides support for keeping the court’s focus on the merits of the claim, rather than engaging in games designed to distract the court.

How To: Respond

If your firm receives the following request:

Any and all data that relate to your document or ESI retention or destruction policies, including but not limited to communications which sufficiently identify the steps taken by or on behalf of you to preserve documents, ESI, and all data that are or may be discoverable in this action. This request includes, but is not limited to, policies for: paper documents, databases, electronic mail, electronic documents, voicemail, instant messaging and all data relevant to this action.

An example of a response could be:

[Name of Party] objects to this Request as overbroad and seeking irrelevant information to the extent it seeks information that is irrelevant to [Party’s] remaining claims. [Name of Party] further objects that such “discovery on discovery” is not appropriate under Rule 26(b)(1) where no showing is made to that a party’s production is deficient. See Brand Energy & Infrastructure Servs., Inc. v. Irex Corp., No. 16-2499, 2018 WL 806341, at *2 (E.D. Pa. Feb. 9, 2018) (explaining that discovery on discovery is not permitted without any showing of bad faith or unlawful withholding of documents.);  Freedman v. Weatherford Int’l, No. 12 Civ. 2121(LAK)(JCF), 2014 WL 4547039 at*2 (S.D.N.Y. Sept. 12, 2014).

This response would be appropriate because retention policies do not contain substantive information related to the claims and defenses of the litigation. In the example above, the requesting party’s claim is seeking information about how long the company has decided to retain certain documents. The responding party would respond that this request seeks discovery on discovery, because the claim does not seek relative, substantive information relating to the litigation.

Behind the curtain, requesting parties frequently shift focus from the merits of the case to spoliation claims. Spoliation claims can be sanctioned by courts with adverse-inference instructions, which can greatly impact the jury. See Glover v. Costco Wholesale Corp., 153 F. App’x, 744, 776 (2d Cir. 2005); Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2d Cir. 2002); Thompson v. HUD, 219 F.R.D. 93 (D. Md. 2003), aff’d 404 F.3d 821 (4th Cir. 2005); Zublake v. UBS Wasbrug, LLC (Zublake IV), 220 F.R.D. 212 (S.D.N.Y. 2003) (when a jury is instructed that it may “infer that the party who destroyed potentially relevant evidence did so out of a realization that the evidence was unfavorable, the party suffering this instruction will be hard-pressed to prevail on the merits). In practice, an adverse inference instruction often ends litigation. On this basis, it has now become common for requesting parties to harp on discovery on discovery at the outset of the litigation with the hope of finding something is missing, and make the case for a spoliation claim.

Final Word

Requesting parties have deployed discovery on discovery tactics to distract the court from the merits of the claims and defenses of litigation. Courts have regularly frowned upon this manipulation, with the support of Federal Rule 26’s proportionality requirements. Be aware of requests including “any” and “all” language, or ESI retention policies.

Requesting parties regularly attempt to take the court’s eye off the ball: blow the whistle.

Interest Area: Information Governance
The information in any resource collected in this virtual library should not be construed as legal advice or legal opinion on specific facts and should not be considered representative of the views of its authors, its sponsors, and/or ACC. These resources are not intended as a definitive statement on the subject addressed. Rather, they are intended to serve as a tool providing practical advice and references for the busy in-house practitioner and other readers.

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