Experienced litigators are familiar with the tension between the federal legal system’s policy favoring liberal pretrial discovery into all relevant matters and the countervailing policy forbidding discovery that is oppressive or imposes an undue burden or expense.

One situation in modern litigation where this tension frequently arises is when a party is concerned that the other side has not been sufficiently responsive to earlier discovery requests. Litigators who sincerely believe that they haven’t received all responsive materials might follow up with additional discovery requests for documents that describe the opposing party’s document review protocols or describe in detail how the opposing party collected the materials that were turned over in response to an earlier discovery request.

Meta-discovery could be the only way to unearth a cover-up by the opposing side. On the other hand, meta-discovery could be no more than an unwarranted and abusive fishing expedition driving up litigation for no good reason.

This is known as “discovery on discovery” or “meta-discovery” – in essence, it is an attempt to discover the methods that the opposing party used to locate, review, and produce discovery materials. The value of attempts at meta-discovery depends on one’s perspective. Meta-discovery could be the only way to unearth a cover-up by the opposing side. On the other hand, meta-discovery could be no more than an unwarranted and abusive fishing expedition driving up litigation for no good reason.

Unfortunately, drawing the line between acceptable “liberal discovery” and unacceptable “discovery on discovery” can be difficult. In a recent case, Adamson v. Pierce County, No. 3:21-cv-5592 (W.D. Wash. Nov. 3, 2023), a federal magistrate judge did just that. The case involved, according to news reports, claims by several Pierce County (Washington) law enforcement officers that their reputations had been unlawfully tarnished when the county decided to shut down a drug enforcement unit in 2020.

Concerned that the county had not produced all records responsive to earlier requests for text messages, the law enforcement officers noticed a Rule 30(b)(6) corporate representative deposition seeking information on the following topics:

• efforts made by Pierce County officials to search for records responsive to earlier discovery requests
• the alleged destruction of text communications beginning in 2019
• the county’s policies on text communications and text message policies
• search efforts made by county officials when providing answers to earlier interrogatories

The county, in response, sought a protective order preventing these topics from being explored at the deposition. After remarking that the parties could have done more to resolve the dispute themselves, the magistrate observed that, in order to obtain “discovery on discovery,” the law enforcement officers would be required to demonstrate “a specific deficiency” in the county’s earlier discovery responses.

The magistrate ruled that the officers had in fact identified just such a deficiency: according to the officers, there was a suspicious gap in the county’s text messaging records beginning in 2019 and continuing for a period of time afterwards.

“Plaintiffs have established an adequate factual basis to allow limited meta-discovery regarding text messages and text messaging policies after 2019,” the magistrate ruled. “Plaintiffs may inquire as to Pierce County’s retention and preservation of text messages after 2019, including how Pierce County retains and preserves text messages; the ability of Pierce County employees to delete text messages from work phones; any restrictions implemented by Pierce County or imposed upon Pierce County employees to restrict their ability to delete text messages; and whether any metadata exists which provides information about deleted text messages, and what information this metadata provides.”

As for the law enforcement officers’ request to explore at the deposition the nature of the county’s efforts to find records sought in earlier discovery requests, the magistrate said that these topics constituted impermissibly broad meta-discovery.

The Adamson case is a handy roadmap for parties facing similar requests to re-plow ground already covered by earlier pretrial discovery requests. First, parties should be prepared to demonstrate a specific reason why “discovery on discovery” is necessary. Mere dissatisfaction with the opposing side’s responses may not be enough to gain access to what, in many cases, might be attorney work product or privileged matters.

Second, both sides should attempt to work out pretrial discovery disputes themselves, if at all possible, and to make sure to comply with any “meet and confer” obligations they might have. Finally, if all else fails, a motion for a protective order under Federal Rule of Civil Procedure 26(c) should be sought – either to limit or prevent discovery on any improper or unduly burdensome topics.

Additional Reading

Turning Deposition No-Shows to the Client’s Advantage What Can We Learn From Celebrity Depositions? Depose Witnesses Early or Risk Losing Their Testimony Litigation Experts Encourage Wider Use of Privilege Protection Orders The Four Types of Depositions Eight Ethical Pitfalls to Avoid at Your Next Deposition