Limited “Discovery on Discovery” Permitted; Judicial Definitions of “Hit Report” and “Families” Held Unnecessary

In the third, and most recent, iteration of a “discovery on discovery” dispute, the court in Apothio v. Youngblood, 2025 WL 2896352 (E.D. Cal. Oct. 10, 2025), interpreted an ESI Protocol that it had approved over defendants’ untimely objections.  The court ordered mutual disclosure of search methodology and ruled that it was unnecessary to define “hit report” or “families.”

In its first decision, the court wrote:

The Court acknowledges the parties’ numerous efforts to meet and confer to resolve their numerous discovery disputes. However, after careful review and consideration of the parties filings and arguments, it does not appear to the Court that Defendants in particular have exhibited an acceptable level of good faith cooperation in attempting to resolve the discovery disputes presented by Plaintiff.

CM/ECF No. 181 at 5 (emphasis added). It also wrote: “It appears to the Court that Defendants have acted with unreasonable intransigence in relation to Plaintiff’s efforts to troubleshoot a relatively narrow and straightforward discovery dispute.”  Id. at 6.

In discussing the second, August 29^th, decision in the Apothio case, I wrote: “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.”  “Discovery on Discovery” Permitted (Sep. 4, 2025).

The third and most recent dispute was over a request by plaintiff to enforce the ESI Protocol. 2025 WL 2896352, at *1.  The protocol stated: “Upon request, the producing party shall provide the search terms and custodians used to identify responsive materials, as well as a corresponding hit report that shows how many documents, exclusive and inclusive of families, contain each search term or string.”

During a discovery conference with the court, defendants did not object to providing that information.  However, they made two additional requests. First, they asked for mutual enforcement against the plaintiff. Second, they asked the court to clarify the term “hit report.”

In its second order,[1] the court wrote that “’parties appropriately may seek discovery on an adversary’s discovery efforts,’ including through production of information revealing search and collection methodology, search terms used, and sources searched.” That decision was discussed in my September 4^th blog.

In that decision, the court relied on Pucket v. Cnty. of Sacramento, 2024 WL 418187, at *2-3 (E.D Cal. Feb. 5, 2024)(“parties appropriately may seek discovery on an adversary’s discovery efforts”), In re Facebook Privacy Litigation,  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); and, In re eBay Seller Antitrust Litig., 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.”).

Further, in that second decision, the court wrote that “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.”  The court added that plaintiff proffered the only search term defendants had used was “Apothio.”  CM/ECF No. 189, at 8.

As such, in the third decision, the court wrote: “The Court will require both parties to comply with Paragraph 5 of the ESI protocol. Specifically, each party shall provide the others with search terms and custodians used to date to identify responsive materials within the producing party’s ESI, as well as a corresponding hit report that shows how many documents, exclusive and inclusive of families, contain each search term or string.” Id. at *2.

The court added: “If the producing party’s ESI tools are not reasonably capable of providing numbers of family members, the producing party shall identify the ESI tools reasonably available to and used by the producing party and certify in its response its inability to return information about family members.”

As to defining terms, the Apothio court  wrote: “The Court declines Defendants’ invitation to further define terms such as ‘hit report’ and ‘families’ as a reasonably diligent search of this Court’s and the Circuit’s jurisprudence governing ESI reveals that the terms are commonly accepted.” Id. at *2.[2]

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[1] CM/ECF No. 189 at 8.

[2] “Discovery on discovery” is also called “culpability discovery,” “discovery about discovery,” and “satellite discovery.”