Discovery on Discovery

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April 28, 2022
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A “Gibbons Law Alert,” B. Basso, Keeping the Curtain Closed: Connecticut District Court Denies Discovery on Discovery Where No Basis to Claim Deficiencies Shown – Gibbons Law Alert (Apr. 28, 2022), describes a recent “discovery on discovery” decision.

Gibbons describes plaintiff’s discovery request for defendant to “identify all electronic devices ‘used … to transmit documents and communications’ about the allegations in the complaint, and all devices ‘used by Wesleyan in the administration of Moodle [a computerized learning management system].’”

Gibbons states that the court noted that defendant had already produced 3,000 pages of documents during two years of litigation “making ‘[the] situation … better viewed as one in which, after having served document production requests, the inquiring party has served follow-up interrogatories to ensure that the production is complete.’”

Ms. Basso notes that the court described this as “discovery on discovery” and that plaintiff had failed to lay a foundation for that type of discovery. She wrote that:

The court explained that “where ‘a party seeks discovery on discovery, that party must provide an adequate factual basis to justify the discovery, and the Court must closely scrutinize the request in light of the danger of extending the already costly and time-consuming discovery process ad infinitum.’” In light of this principle, the court concluded that the “[t]he record … does not provide an ‘adequate factual basis’ for requiring Wesleyan to catalog all of the devices on which its responsive communications reside.” The University “represent[ed] that it produced ‘all relevant documents and communications regarding the claims and defenses in this case’” and the plaintiff failed to present any “factual basis for supposing that the production [was] incomplete.” While a party seeking discovery on discovery can sometimes establish an adequate factual basis by “identifying documents that it expected to receive but did not receive,” no such showing was made by the plaintiff in this case.

Thanks to Ms. Basso and Gibbons for this interesting post.