“Discovery on Discovery” Permitted

“Discovery on Discovery,” sometimes called “satellite discovery,” “discovery about discovery,” or “culpability discovery,” was permitted in Apothio, LLC v. Youngblood, 2025 WL 2495624 (E.D. Ca. Aug. 29, 2025).

Plaintiff grew hemp and alleged that County officials improperly destroyed its crop. Plaintiff sought a Rule 30(b)(6) deposition; however, Defendants refused.  Plaintiff moved to compel and it did not go well for Defendants: “To begin with, Defendants have engaged in sanctionable conduct by refusing to appear for deposition without moving the Court for a protective order, as required, thereby shifting the burden to Plaintiff to seek relief.”  Id. at *3.

In response to Plaintiff’s motion, Defendants sought to justify their position by objecting to the discovery.  The Apothio court wrote: “Defendants’ misconduct is aggravated given that their asserted grounds for refusing to appear for deposition are meritless.”  Id. at *3.  Those asserted grounds included a misplaced objection to “discovery on discovery.”

The court wrote: “Defendants argue that permitting deposition testimony about their efforts to respond to Plaintiff’s discovery requests is ‘improper and/or premature.’” Id. at *5.  The Apothio court rejected that argument, writing:

Another magistrate judge from this Court has rejected this same argument when advanced by counsel for Defendants in an unrelated matter. See Pucket v. Cnty. of Sacramento, No. 2:22-cv-0350 KJM DB, 2024 WL 418187, at *2-3 (E.D Cal. Feb. 5, 2024). Counsel for Defendants’ briefing on this issue here is virtually identical to the briefing he filed in the Pucket matter. As the court in Pucket and other courts have found, parties appropriately may seek discovery on an adversary’s discovery efforts. See Pucket, 2024 WL 418187, at *3 (citing cases); see also In re Facebook Privacy Litigation, No. 5:10-cv-02389-RMW, 2015 WL 3640518, at *2 (N.D. Cal. June 11, 2015) (ordering party to submit a declaration explaining her search for responsive documents in detail, including, but not limited to, all sources searched and all search parameters used); In re eBay Seller Antitrust Litig., No. C 07-01882 JF (RS), 2007 WL 2852364, at *1 (N.D. Cal. Oct. 2, 2007) (plaintiffs are “entitled to inquire into the facts as to what the employees receiving the [document retention notices] have done in response; i.e., what efforts they have undertaken to collect and preserve applicable information.”).

Id. at *5 (emphasis added).

In a “belts and suspenders” alternative holding, the court wrote:

Even where Defendants are correct in suggesting no such discovery is warranted absent a finding of discovery misconduct …, the Court in this action already has documented in an earlier order and herein its findings that Defendants have been unreasonable in responding to Plaintiff’s meet/confer efforts and intransigent in complying with their discovery obligations. Indeed, they have steadfastly refused to produce documents, in some instances based on meritless discovery objections, and have failed to even clarify whether they intend to produce any Rule 30(b)(6) witness in response to Plaintiff’s notices. Further, given Plaintiff’s proffer that the only search term Defendants used in seeking responsive ESI was “Apothio,” they will be ordered to produce a witness prepared to testify about Plaintiff’s noticed discovery topics…, including concerning ESI search methodology.

Id.  The Apothio court ordered Defendants to appear for the Rule 30(b)(6) deposition.

SOME ADDITIONAL COMMENTS BY THE COURT

The Apothio court wrote that, despite two months of negotiations with Apothio, Defendants raised an issue in court that they had not raised in the meet-and-confer discussions. Id.  The Apothio court wrote: “It is the antithesis of good faith and not the first time the undersigned has admonished counsel for Defendants’ deficient discovery conduct.” Id. at *3 (emphasis added).

The Apothio court also resolved disputes over approximately 90 of Plaintiff’s document requests.  Id. at *5, passim. The details of those disputes is beyond the scope of this blog; however, the court wrote:

While the Court finds some of Defendants’ objections warranted in part, it further finds that many of their objections are meritless. Defendants’ unwillingness to engage in good faith meet/confer efforts with Plaintiff to seek compromise – as reflected in counsel for Defendants’ email communications with counsel for Plaintiff exhibiting unexplained delays, backtracking, and nonresponsiveness… – and, instead, relegation of an inordinate number of discovery disputes to the Court for adjudication, is unreasonable.

Id. at *5.

GENERAL PRINCIPLES OF DISCOVERY ON DISCOVERY

“Discovery on Discovery” has generated a lot of interest.

• Guidelines for “Discovery on Discovery” (Aug. 5, 2025)(While disfavored, relevant and proportional “discovery on discovery” is permitted “where there is evidence of a specific deficiency in the production.”  Allergan, Inc. v. Revance Therapeutics, Inc., 2025 WL 2187115 (M.D. Tenn. Jul. 25, 2025));
• Request for “Discovery on Discovery” Was Overbroad; Uber Deponent Was Ordered to Bring Uber Laptop to Deposition; Discovery About Uber Information Governance Training Resolved (Jul. 4, 2025).

It has been suggested that:

It is axiomatic that an opponent may routinely obtain discovery of a client’s actions taken to implement the duty to preserve information. As set forth below, this is no different than the traditional “paper discovery” paradigm of asking a deponent to describe his or her search for responsive paper documents.

It is of no moment that the paper or electronic search was conducted at the direction of counsel. Parties are permitted to inquire into an opponent’s efforts to preserve relevant information through interrogatories and in depositions directed to the opposing client. In the ESI context, this is exemplified by In re eBay Seller Antitrust Litigation.

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, 425-26 (2008).

However, “[a]bsent a preliminary showing of a failure to preserve that which should have been preserved, courts have generally refused to permit discovery of counsel’s communications related to the preservation of information.”  Id. at 427.

Nevertheless, “[c]ourts have permitted such discovery, … when confronted with a showing of a failure to preserve.”  Id.  Further, “after being presented with a breach of the duty to preserve, the court probed attorney-client communications and attorney-paralegal discussions, and demanded production of the … litigation hold notices….” Id. at 435-35.  “The outer limit, if any, of the power to consider attorney-client communications in the context of a breach of the duty to preserve remains to be determined.”  Id. at 450.

This paradigm has led to multiple decisions concerning discovery of litigation hold notices and the identities of those to whom they were sent.  See, e.g., Discoverability of Litigation Hold Notices and Steps to Implement a Litigation Hold (Nov. 24, 2024); 8 Lessons Learned – Part IV – Disclosure of Recipients of Litigation Hold Notices (May 9, 2024).

The risk of disclosure of attorneys’ implementation communications suggests the need for care in drafting litigation hold communications:

In today’s practice, counsel and their clients are well advised to think early and often about the potential for discovery on discovery. Especially in the highly complex world of e-discovery, even with good faith efforts, it is very easy to fail to preserve or lose relevant information by inadvertence. Even the inadvertent loss of relevant data may lead to probing questions into the conduct of counsel and client before a court resolves a sanctions motion.

For this reason, counsel and client should be aware, when drafting preservation documents and engaging in implementation discussions, that those documents and discussions may voluntarily or involuntarily be presented to a court for review in connection with a spoliation motion. Prudence suggests, for example, that litigation hold letters should not contain surplus tactical and strategic discussions, and should be no more expansive than necessary to effectively accomplish the preservation task.

“Discovery About Discovery,” 37 U. Balt. L. Rev. at 454; Another Approach to Drafting and Discovery of Litigation Hold Notices (Feb. 21, 2025).

Apothio may be viewed in part as reactive to a series of flaws in Defendants’ posture.  However, one basic conclusion is that broad “discovery on discovery” was permitted upon a showing of flaws in Defendants’ methodology.  And, even without those flaws, as in eBayseller, discovery into the opponents’ “discovery efforts” was permitted without such a showing.

UPDATE: eBay Seller was applied in IN RE: UBER TECHNOLOGIES, INC., PASSENGER SEXUAL ASSAULT LITIGATION, 2025 WL 2487665 (N.D. Cal. Aug. 29, 2025), at  *2 (“while Uber should not inquire about the specific verbiage in preservation instructions that I.E. and A.R. received from their counsel at Peiffer Wolff, it is ‘entitled to know what kinds and categories of ESI [I.E. and A.R.] were instructed to preserve and collect, and what specific actions they were instructed to undertake to that end.'”), *3 (“Consistent with the eBay decision cited above, Uber may inquire whether Dean and her four friends were expected to identify potential sources of ESI, such as laptops, mobile phones, social media and messaging accounts, and what they were expected to do to preserve their potentially relevant communications contained in these devices and on such accounts. “).