Meta-Discovery or Discovery About Discovery: Is It Proper to Discover an Opposing Party’s Efforts to Comply With Discovery Requests?
 
January 2, 2008
 
Michael Starks - Orlando

Introduction

With the advent of the new e-discovery federal rules, a relatively new litigation tactic will likely gain a tremendous amount of momentum. This tactic is “discovery about discovery,” or “meta-discovery” for short, drawing on the lay definition of the term “meta-data” as “data about data.” See Scotts Co. LLC v. Liberty Mut. Ins. Co., 2007 WL 1723509, *3 (S.D.Ohio 2007). Normally, an attorney propounds discovery requests that relate to the claims or defenses in a case, that is, “the merits.” But with meta-discovery, the propounded discovery relates solely to the opposing party’s efforts (or more specifically, the lack thereof, be it real, perceived or even hoped-for) to comply with specific discovery requests – the usually unspoken goal being a successful motion for sanctions, and, even in some jurisdictions, a tort claim for spoliation of evidence. Cf. Michael D. Starks, Deconstructing Damages for Destruction of Evidence: Martino Eradicates the First-party Tort of Spoliation of Evidence, 80 FLA. B.J. 36, 36- 43 (July/Aug. 2006). As stated by one federal court: “It seems that the ‘new frontier’ of litigation is the spoliation arena; find some evidence in the case that is not preserved exactly, and try to win the case on that basis.” Hickman v. Carnival Corp., 2005 WL 3675961, *1 (S.D. Fla. 2005). That is the unspoken goal of meta-discovery.

Of course, evidence of pre-trial discovery conduct is normally not admissible at trial, unless there is some hint of spoliation of evidence. Strasser v. Yalamanchi, 783 So.2d 1087, 1093 (Fla. 4th DCA 2001). Also, with meta-discovery the problem is not really admissibility but discoverability. The latter has a broader standard in both state and federal courts, and is where the real burden, expense and potential for harassment lies.

Although sometimes involved tangentially, the real issue with meta-discovery is not the production of generic document retention policies. See Petersen v. Union Pacific Railroad Co., 2006 WL 2054365, *1-2 (C.D. Ill. 2006); Gulf Ins. Co. v. Skyline, 2003 U.S. Dist. LEXIS 2654 (D. Minn. 2003). Meta-discovery does not concern a generic document retention policy. Rather, it is an effort to obtain information regarding an opposing party’s specific efforts to comply with a party’s specific discovery requests, particularly regarding electronic documents. With meta-discovery, the types of areas of inquiry in a corporate deposition notice, and/or in document requests or interrogatories, concern the identification of individuals responsible for the internal collection of the documents to be produced to the other side; efforts that have been or will be undertaken by persons responsible for coordinating paper and electronic document production; written instructions that have been provided to all such data custodians and personnel capable of retrieving data in electronic form; and other related inquiry areas and requests. Clearly, this is not the typical discovery request, because it is not directed at the merits of the case. Instead, this is meta-discovery.
In the new era of e-discovery, meta-discovery is a potent weapon rife with problems of privilege, expense and the spectre of harassment. The question is, is meta-discovery proper? The majority rule on discoverability seems to be the same as the rule on admissibility: without some concrete evidence of spoliation or other discovery abuse, meta-discovery is not just inadmissible, it is also non-discoverable.

Meta-Discovery Forbidden

Several courts have refused to allow meta-discovery. For instance, in the case of In re Honeywell Intern., Inc. Securities Litigation, 230 F.R.D. 293, 302 (S.D.N.Y. 2003), the court forbade discovery of a non-party’s specific document production efforts pursuant to a subpoena, as well as general document retention policies, even though there was evidence of document destruction by the defendant in an unrelated matter. The Honeywell court’s ruling reflected the principle that, where there is no real basis to suspect spoliation of evidence in the particular case, there is no basis for meta-discovery in that case. Though Honeywell involved production demands directed to a non-party pursuant to a subpoena, where the balance of the equities may balance more in favor of a non-party to the litigation, other courts have also forbidden meta-discovery directed at a party litigant.

For instance, the court in E.E.O.C. v. Boeing Co., 2007 WL 1146446, *2 (D. Ariz. 2007), analyzed a corporate deposition notice which included Boeing’s efforts to locate certain requested documents and refused to allow the meta-discovery pursuant to Federal Rule 26 on the ground, inter alia, that the discovery was not related to any claim or defense in the case. Federal Rule 26 was amended in 2000 to allow only attorney-directed discovery of evidence “relevant to the claim or defense of any party,” Fed.R.Civ.P. 26(b)(1) (emphasis added), but only with good cause may a party in a federal case acquire court approval to obtain discovery “relevant to the subject matter involved in the action.” Id. (emphasis added). However, many states still retain the former federal standard that allowed an attorney to propound discovery seeking evidence “relevant to the subject matter of the pending action” without prior court approval. See e.g., Fla.R.Civ.P. 1.280(b)(1); Tex.R.Civ.P. 192.3(a).

Meta-discovery should also be forbidden under the older, broader “subject matter” standard, unless perhaps a concrete basis to believe discovery abuse such as spoliation exists. For example, in In re Exxon Corp., 208 S.W.3d 70 (Tex. App. 2006), the appellate court forbade meta-discovery under Texas’ broader discovery standard, which does not require a good cause showing before an attorney may direct discovery “relevant to the subject matter of the pending action.” Id. at 74-75 (quoting Tex. R. Civ. P. 192.3(a)). Even under the broader standard, the Exxon court ruled that a party could not be compelled “to present a deponent to testify as to the efforts taken to search for documents requested in requests for production that have been previously responded to.” Id. at 70. The court noted that the seeker of the meta-discovery “produced no concrete evidence of discovery abuse in this case and failed to justify an investigation into … discovery compliance,” and that the trial court had allowed a “fishing expedition regarding matters either privileged or not relevant to the subject matter of the pending action.” Id. The facts of Exxon present a clear example of the danger of abuse and harassment presented by meta-discovery, and the arguments that can be made for and against meta-discovery in the form of a corporate deposition notice.

The court in Gibson v. Ford Motor Co., 2007 WL 41954 (N.D. Ga. 1/4/07), reconsideration denied, 2007 WL 640030 (N.D.Ga. 2/26/07), also refused a similar meta-discovery request in the form of a document request. Specifically, plaintiffs sought the defendant’s “suspension order,” which the plaintiffs claimed provided a list of the material that the defendant had “ordered preserved and which documents would, in the opinion of the defendant, pertain to the case in question.” Id. at *2. The court held that the information was not reasonably calculated to lead to the discovery of admissible evidence, noting that “[i]n the Court’s experience, these instructions are often, if not always, drafted by counsel, involve their work product, are often overly inclusive, and the documents they list do not necessarily bear a reasonable relationship to the issues in litigation.” Id. at *6. The court further noted that “[t]his is not a document relating to the Defendant’s business, but “[r]ather … relates exclusively to this litigation, was apparently created after this dispute arose, and exists for the sole purpose of assuring compliance with discovery that may be required in this litigation.” Id. Finally, the court was concerned that “compelled production could dissuade other businesses from issuing such instructions in the event of litigation,” and that “[p]arties should be encouraged, not discouraged, to issue such directives.” Id. at *6.

Similarly, in Google Inc. v. Am. Blind & Wallpaper Factory, Inc., 2006 WL 3290402 (N.D. Cal. 2006), the plaintiff simply did not believe that defendant had fully responded to the plaintiff’s request for e-mails, and demanded that the defendant “be compelled to produce an affidavit ‘describing its document search and collection processes.’” Id. at *3. The court did not grant the request that the defendant set forth its document search and collection processes “on this record,” but merely required that defendant provide “a verified statement signed by a responsible corporate official that [defendant] has made a good faith search for responsive materials and that all responsive, non-privileged documents in this category have been produced.” Id. at *3.
The lesson to be drawn from the above cases is that actions taken in response to discovery requests are generally privileged, and that such meta-discovery is not discoverable – at least until there is some concrete, good faith basis to believe that spoliation or discovery abuse has occurred.

Meta-Discovery Allowed: The Minority Position

Some courts have allowed “meta-discovery,” however. For instance, in Discover Fin. Servs., Inc. v. Visa U.S.A., Inc., 2006 WL 3230157 (S.D.N.Y. 2006), American Express asked the court to order Wells Fargo to provide Rule 30(b)(6) corporate representative witnesses to address the topics of Wells Fargo’s document retention, collection and production efforts. The court ruled that American Express could take one three-hour corporate deposition on meta-discovery issues, and that it could ask no more than 10 questions on meta-discovery issues of other non-corporate representative witnesses deposed in the case. Id. at *2. As for “litigation hold” notices, the court inferred that if American Express had been willing to produce its litigation hold notice, the court would have been willing to compel the others to do so as well. No analysis was offered by the court for its rulings.

Similarly, in Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc., 2007 WL 1054279 (D. Kan. 4/9/07), the defendants filed a joint motion to compel the plaintiff to produce for deposition a Rule 30(b)(6) witness with knowledge of plaintiff’s production of documents and data. The deposition topics at issue were document retention policies of various types of documents, destruction of documents, capabilities of certain software and computer systems, and plaintiff’s “search for, identification of and production of documents and information responsive to discovery requests in this Lawsuit.” Id. at *1. The court’s decision specifically noted that plaintiff had not properly objected to the deposition notice prior to the deposition, implicitly ruling that the objection that the meta-discovery request was improper was waived. Therefore, the only issue of substance addressed in the case was the “reasonable particularity” requirement of the discovery request, which the court held had been satisfied. The court noted that the plaintiff “points to excerpted deposition testimony that shows [its corporate representative] personally viewed all paper documents for responsiveness to discovery requests, and that [its] servers were searched, but this does not adequately answer Defendants questions regarding how Heartland ensured its production was responsive, especially its electronic production.” Id. at *6 (emphasis in original). The Heartland court found that the corporate witness had been inadequately prepared on meta-discovery issues and ordered plaintiff to produce a supplemental Rule 30(b)(6) witness. Id. at *7. Unfortunately, the actual propriety of the meta-discovery request was never properly raised in the case, as it had been waived, and was therefore not before the court.

In Wells v. Xpedx, 2007 WL 1200955 (M.D. Fla. 4/23/07), the plaintiff sought e-mails of seven of defendant’s employees, and alleged that in 2003 the defendant implemented a new e-mail deletion policy. The plaintiff argued that the defendant’s archive system, “legal hold” folders, and permanent backup computer system might contain copies of the requested emails. Id. at *1. The defendant argued that any e-mails not specifically preserved are deleted after 90 days, that it had produced all relevant e-mails, and that a deposition on the e-mail deletion policy would be redundant because the plaintiff already had the policy. The court, however, noted that deleted e-mails in most cases are not irretrievably lost, and that “[a]lthough Defendant alleges that all responsive e-mails have been produced to Plaintiff, Defendant has not provided an affidavit or other specific evidence regarding the scope of Defendant’s search of its electronic depositories for responsive documents, including information concerning the source of the electronically stored information by category and type.” Id. at *1-2. The court also ruled that the defendant had not “provided adequate information regarding Defendant’s e-mail deletion policy, or the procedures for storage and retrieval of deleted emails, files, hard drives, archives and backup tape systems to allow Plaintiff to evaluate the likelihood of finding responsive information.” Id. at *2. However, the issue in Wells was not really “meta-discovery.” The plaintiff was simply trying to determine if e-mails could be found elsewhere on the computer system, and the deposition was to be of the defendant’s IT person on the defendant’s computer capabilities, not on the issue of what the defendant (or its counsel) globally did to comply with the plaintiff’s request to produce. The case is therefore not particularly enlightening as to the propriety of meta-discovery.

Only in the previously discussed Discover Fin. Servs., Inc. v. Visa U.S.A., Inc. case did the court specifically rule that challenged meta-discovery was allowed, and it did so without any analysis.

Conclusion

In this new era of e-discovery, the potential for harassment through discovery has grown exponentially, and “meta-discovery” will only increase that potential. Sooner or later, every party and attorney involved in litigation will likely face this tactic. However, the majority rule seems to be that meta-discovery should not be permitted in the absence of concrete evidence of discovery abuse.

The author wishes to thank Bill Hamilton, Seth Row and Sonja Strnad for much of the research and information contained in this article.

For more information, email Michael D. Starks at michael.starks@hklaw.com or call toll free, 1-888-688-8500.