Be Prepared to Answer Discovery About Your Discovery

Under the current formulation of Federal Rule of Civil Procedure 26(b)(1), courts have shown a willingness to allow a requesting party to inquire into the discovery process when it questions the sufficiency of the responding party’s document production. For example, in Ruiz-Bueno v. Scott, No. 2:12-cv-0809, 2013 U.S. Dist. LEXIS 162953 (S.D. Ohio Nov. 15, 2013), the court required the defendants to explain the “efforts they made to comply with plaintiffs’ previous discovery requests” as well as “what procedures or methods” they used to search for data. In this case, the defendants were reluctant to discuss their process and offered only vague responses to the plaintiffs’ questions, which piqued their curiosity—as well as the court’s.

Other courts have permitted inquiries into people who performed searches for data, where they searched, and what search terms they used. See, e.g., McNearney v. Wash. Dep’t of Corrections, No. C11-5930, 2012 U.S. Dist. LEXIS 108386 (W.D. Wash. Aug. 2, 2012). Another court asked a party to produce information about its “search strategy for identifying pertinent documents, including the procedures it used and how it interacted with its counsel to facilitate the production process,” arguing these details were relevant because counsel had certified that its discovery responses were complete and accurate under Rule 26(g). S2 Automation LLC v. Micron Tech., Inc., No. CIV 11-0884, 2012 U.S. Dist. LEXIS 120097 (D.N.M. Aug. 9, 2012).

As cooperation and transparency become increasingly important concepts in e-discovery, parties would be well advised to recruit an expert to guide the discovery process. Counsel should make efforts to meet and confer early to avoid suspicion and resulting costly discovery disputes. However, the majority of trial counsel and in-house counsel are not e-discovery experts, nor are they soothsayers. Therefore, they would benefit from the outside expertise of discovery specialists who can perform early case assessments, determine the proper scope of discovery (including custodians and data sources), and anticipate potential risks to address with opposing counsel. Moreover, bringing a seasoned discovery veteran to discovery conferences can provide a level of comfort and confidence as parties discuss technical search protocols and debate search terms.

Matt Mohwinkel is vice president at Conduent. He can be reached at info@conduent.com.