Request for “Discovery on Discovery” Was Overbroad; Uber Deponent Was Ordered to Bring Uber Laptop to Deposition; Discovery About Uber Information Governance Training Resolved

In In Re: Uber Technologies, Inc., Passenger Sexual Assault Litigation, 2025 WL 1393216 (N.D. Cal. May 14, 2025), the court resolved discovery disputes over a corporate designee deposition under Fed.R.Civ.P. 30(b)(6).  The court:

• Narrowed a request for “discovery on discovery”;
• Ordered that, with limitations, Uber’s deponent must bring an Uber laptop to the deposition; and,
• Addressed discovery into alleged training to overuse privilege designations.

DISCOVERY ABOUT DISCOVERY

Plaintiffs sought testimony about Uber’s recordkeeping practices.  They proposed the following as a Topic 1 for the deposition of Uber’s corporate designee:

Whether there was, in fact, a “mass deletion of internal emails, group chats, and company data, carried out under an internal initiative to ‘eliminate data waste’ throughout all levels of the company,” as stated by journalist Mike Isaac in his book “Super Pumped” at page 312, and, if so, the scope, contents, and circumstances of that deletion.

Preliminary Showing of Spoliation Was Not Required

Uber unsuccessfully objected that “Plaintiffs have not made a preliminary showing of spoliation or any other showing sufficient to justify this discovery.” [cleaned up; citation omitted].  The court wrote that:

Some courts, including other decisions cited by Uber, have held “that ESI storage and retention discovery is improper when the requesting party has made no showing that spoliation is an issue.” Deneke v. Menard, Inc., No. 5:21-cv-05068-LLP, 2022 WL 2237827, at *10 (D.S.D. June 22, 2022).

The Uber court wrote that the preliminary showing principle did not apply here, because the issue was whether “Uber made an affirmative effort to delete internal documents and data” and that issue “is a different question from how it implemented litigation holds….”  The court stated that “Uber has not argued that any such effort would be protected by privilege.”  Thus, a preliminary showing of spoliation was not necessary according to the court.

Plaintiffs’ Request Was Potentially Overbroad and Vague

However, in examining the scope of the proposed discovery the Uber court found that plaintiffs’ “particular [proposed] deposition topic is potentially overbroad ….”  It wrote that: “To the extent that Topic 1 would require a witness to be versed in any potential mass deletion that may have occurred regarding any other categories of information, the Court agrees that it is overly vague and not sufficiently relevant to warrant the burden of preparing a witness to testify to it.

Uber Did Not Object to Other Requests That Would Provide Sufficient Information

To address that overbreadth issue, the court looked to Uber’s position on other discovery requests.  The Uber court wrote:

[I]t appears that Plaintiffs can get most if not all of the potentially relevant information they are seeking through topics that are not in dispute.

For example, it noted that: “Uber has not raised any dispute regarding Plaintiffs’ separate topic seeking testimony regarding litigation holds.”

Uber specifically does not object to other such topics in the same deposition notice, including for testimony regarding “Uber’s recordkeeping systems, policies, and practices with respect to, inter alia, emails, internal messaging, app development, and marketing…. As a general matter, given the scope of this litigation and the parties’ discovery disputes thus far, the Court finds that at least some discovery regarding Uber’s recordkeeping and retention is relevant proportional to the needs of the case even if only to show what does or does not remain available for production, without reaching the question of whether Plaintiffs have made any showing of spoliation.

Based on Uber’s agreement to produce those data, the court wrote that “Uber’s witness(es) will need to be prepared to answer questions as to whether Uber engaged in company-wide deletion of any of those categories of documents and data as part of any ‘internal initiative’ to ‘eliminate data waste.’”  Similarly, the court looked to other unopposed discovery requests to support its decision.

For more on discovery about discovery a/k/a satellite discovery a/k/a culpability discovery a/k/a discovery on discovery, see:

• Google Avoids Discovery on Discovery Based on Insufficient Foundation for Request (Dec. 18, 2024)
• Discoverability of Litigation Hold Notices and Steps to Implement a Litigation Hold (Nov. 24, 2024)
• Discovery About Discovery – When Was Duty to Preserve Triggered? (Jul. 23, 2024)
• Self-Collection, Discovery About Discovery, and Curative Sanctions (Sep. 22, 2024)
• 8 Lessons Learned – Part IV – Disclosure of Recipients of Litigation Hold Notices (May 9, 2024)
• Recent “Textbook” Analysis of Fed.R.Civ.P. 37(e) (Apr. 17, 2023)
• Discovery on Discovery – Steps Taken to Produce Documents (Jun 14, 2022)
• Discovery of Steps Taken to Implement a Litigation Hold is Permitted (Mar. 26, 2022)
• Are Litigation Hold Notices Discoverable? (Mar. 5, 2022)
• When is a Litigation Hold Notice Discoverable? — When a Litigation Hold is Defective (Aug. 9, 2021)
• When is a Litigation Hold Notice Discoverable? (Dec. 1, 2020)
• The Hon. Paul W. Grimm, Michael D. Berman, et al., “Discovery About Discovery: Does the Attorney-Client Privilege Protect All Attorney-Client Communications Relating to the Preservation of Potentially Relevant Information?,” 37 U. Balt. L. Rev. 413 (2008).

The Uber court addressed a number of other issues.

LIMITED ORDER TO BRING UBER LAPTOPS TO DEPOSITION

Because laptops are “tangible items,” a deponent can sometimes be required to produce them in a deposition – but, not always, and with limitations.

Plaintiffs asked that Uber’s corporate designee bring laptops to a deposition so that the deponent could access Uber’s systems during the deposition.

• In response, “Uber expresses concern that Plaintiffs might plan to use those depositions to conduct a free-ranging inspection of Uber’s electronic systems and records.”
• “The Court agrees with Uber that Plaintiffs have not shown sufficient cause for such an inspection.”
• “Although Plaintiffs’ requests are unusual, a laptop falls within the literal scope of ‘tangible things’ that a party deponent can be required to produce at a deposition under Rule 30(b)(2).”

The court added that:

That said, the degree of information contained within or accessible from a laptop, particularly when it is connected to a party’s propriety networks, warrants caution before authorizing such request and safeguards as to how the laptop may be accessed. In many cases, such a request would not be appropriate. [Emphasis added].

The court ordered a pre-deposition “meet and confer” and that laptops be brought to the deposition subject to limitations:

• “Plaintiffs’ counsel may ask the deponent to demonstrate certain systems or platforms, regardless of whether such demonstrations were anticipated and discussed prior to the deposition.”
• “Although Plaintiffs may ask for demonstrations, Uber’s counsel may instruct the witness not to provide a particular demonstration (or the witness may refuse to provide such demonstration) if Uber believes the demonstration: (a) would reveal privileged information; (b) would reveal extremely sensitive information that is not relevant to this litigation; or (c) should not be provided for some other compelling reason. This clause is deliberately broader than the otherwise permissible grounds for instructions not to answer questions at a deposition.”
• “The depositions must be conducted in a way that allows the deponents to control when Plaintiffs’ counsel can and cannot see the deponents’ laptop screens.”
• “Neither Plaintiffs counsel nor anyone acting on their behalf may interact directly with the deponents’ laptops, unless Uber expressly agrees otherwise.”

As a general matter, a permissible demonstration is limited to “the operation and architecture of Uber’s internal recordkeeping systems….”  The court viewed the demonstrations as less intrusive than a Rule 34 inspection and: “These depositions could be an efficient opportunity to provide such demonstrations, so long as they can be done in a way that does not disclose privileged information.”

DISCOVERY INTO ALLEGED TRAINING FOR MISUSE OF PRIVILEGE

Plaintiffs sought discovery of whether Uber employees were taught to “shroud” sensitive communications using attorney-client privilege:

The Court shares Plaintiffs’ concerns that Uber may have systematically over-designated documents as privileged, both in its original privilege logs in this litigation and in headers and similar markers included in documents at the time they were created….  Plaintiffs will have ample opportunity in those depositions to explore the training those witnesses may have received regarding purported misuse of attorney-client privilege, and to ask questions about particular documents that were marked as privileged but later de-designated or ordered produced, to the extent such training or guidance is not itself privileged….  Under the circumstances, the Court agrees with Uber that preparing a Rule 30(b)(6) witness to testify generally regarding Uber’s training of any of its tens of thousands its employees regarding attorney-client privilege is unduly duplicative, burdensome, and disproportionate to the needs of this litigation.

For a discussion of Google’s old “communicate with care” program, see “Federal judge who ruled against Google is ‘taken aback’ by its efforts to avoid paper trail”(Aug. 9, 2024); Information Governance – Mis(?)-Labeling Documents as Privileged (Part IV) (May 16, 2022); Information Governance – Mis(?)-Labeling Documents as Privileged (Part III) (Apr. 9, 2022); Information Governance – Mis(?)-Labeling Documents as Privileged (Mar. 23, 2022).

UPDATE: typological error corrected on Jul. 14, 2025.