Discovery on Discovery – Steps Taken to Produce Documents

FLSA Litigant Cannot Refuse to Provide Relevant Discovery Merely Because It May Open the Responding Party Up to Other Liability
June 14, 2022
Perils of a Vague Preservation Letter
June 21, 2022

Josh Gilliland recently posted an excellent blog about an interesting discovery case in Failure to Launch a Protective Order to Stop a 30(b)(6) on Responding to Requests for Production – Bow Tie Law.   As Josh explained, the court in that case permitted discovery of the “method and manner used” to identify the documents produced in discovery, including the “identification of relevant custodians, sources of data, databases, keywords, search terms, predictive coding or any other technology assisted review.”

In a related context, it has long been accepted that the steps taken in response to a litigation hold notice are discoverable.  When is a Litigation Hold Notice Discoverable?. “It is axiomatic that an opponent may routinely obtain discovery of a client’s actions taken to implement the duty to preserve information….”  The Hon. Paul W. Grimm, M. Berman, et al., “Discovery About Discovery,” 37 U.Balt.L.Rev. 413, 425-26 (2008).

A decision last year in the Eastern District of Pennsylvania is in accord with Josh’s blog.  The court held that the steps a party took to search for and produce documents are discoverable.  Discovery of Steps Taken to Implement a Litigation Hold is Permitted.