A court in the Southern District of Ohio recently ordered the defendants in a wrongful death case to answer interrogatories asking them to explain “what procedures or methods were used to search for responsive electronically stored information, or ESI,” and “what efforts they made to comply with plaintiffs’ previous discovery requests.” Ruiz-Bueno v. Scott, No. 12-cv-0809 (S.D. Ohio Nov. 15, 2013). The court ordered this “discovery about discovery” because the plaintiffs’ concern about the volume of ESI produced appeared to be reasonably grounded and the defendants “were less than forthcoming with information needed to make further discussion of the issue a collaborative rather than contrarian process.”
The court stressed the importance of engaging in a collaborative discovery process either as part of the Rule 26(f) planning process, or as part of the attempted resolution of an ESI dispute: “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.” According to the court, the concept of collaboration appears in Rule 26(f) and is “completely consistent” with a lawyer’s duty to represent a client zealously.
The court explained what should have happened regarding the production of 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.” Then, the plaintiffs’ counsel could have provided suggestions about making the search for ESI more thorough. The defendants would not have had to follow these suggestions, but the nature of the dispute would have changed 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.”
In reaching its holding, the court rejected the defendants’ argument that discovery itself is not a proper subject of discovery because it is not a claim or defense in a case. The court relied on language in Rule 26(b)(1) making clear that information about “the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter” is within the proper scope of discovery. “Strictly speaking, the location or description of documents pertinent to the case is not relevant to the parties’ claims or defenses, but it is the type of information which can assist a party in structuring his or her discovery or in pursuing discovery effectively and efficiently.”
The court also rejected the idea that sharing information about the processes used to search for discoverable ESI would result in the disclosure of privileged communications. “That may well be true in some broad sense, but there is a vast difference between describing, factually, what a party has done to comply with a document request, and revealing discussions between counsel and the client about that process. Simply put, discussing how to go about searching for and producing ESI does not ordinarily or necessarily entail revealing confidential client communications.”
The court closed by offering its view that counsel “need to cooperate” in order for the discovery process to be cost-efficient for their own clients and for the court and that in the future it would consider whether sanctions were needed “to force the type of cooperation which the Rules of Civil Procedure require.”
Without citing to it, the court effectively laid out the purpose of The Sedona Conference’s® “Cooperation Proclamation” and thoughtfully explained why cooperative planning and discussion between counsel — and not “unilateral decision-making” — should be part of the e-discovery process. In doing so, the court joined other courts which have required parties to disclose the processes they used to find discoverable ESI, as discussed here and here. It remains to be seen whether courts will routinely require parties to share this information without some showing that a party failed to produce responsive ESI. Even the court here noted that “not every case will justify directing counsel or a party to provide ‘discovery about discovery.’”
It also remains to be seen whether the proposed changes to Rule 26(b)(1), if enacted, would affect a party’s ability to seek “discovery about discovery” in this context. Arguably, the defendants’ argument about the proper scope of discovery would be stronger under the new rule. The proposed amendment to Rule 26(b)(1) expressly limits the scope of discovery to what is “proportional to the needs of the case.” It also strikes from the rule the phrase “including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identify and location of persons who know of any discoverable matter,” which was relied upon by the court to order “discovery about discovery,” and the phrase “if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” The proposed amendment also strikes this sentence: “For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.” According to the draft Committee Notes, the result of these changes is that the discovery of inadmissible evidence should not extend beyond the permissible scope of discovery — namely, that which is relevant to a party’s claim or defense and proportional to the needs of the case — simply because it is “reasonably calculated” to lead to the discovery of admissible evidence.