The Sedona Conference has released its “Primer on Crafting eDiscovery Requests with ‘Reasonable Particularity’” (Nov. 2021, Public Comment Version).
The Primer is a valuable contribution. It gathers a substantial body of research in an easy-to-read, authoritative resource. It focuses entirely on discovery requests, not responses, and does so in depth. And, it does so by parsing the text of the rules, specifically the requirement of “reasonable particularity” in requesting documents. Finally, it provides specific suggestions, such as temporal limitations, “sufficient to show” requests, cooperative exchanges of information, phased – or “staged” – discovery requests, document-specific requests, early delivery under Fed.R.Civ.P. 34, and avoidance of unnecessary definitions. To paraphrase, the Primer asks why is it necessary to draft a long, unwieldy definition of “document” when that word is commonly understood and defined by the Rules?
There is an old joke that law is the only learned profession without a Nobel Prize because, in law, you win by proving that someone else thought of your idea first. One theme of the “Reasonable Particularity” Primer is that attorneys drafting discovery requests can no longer rely on their trusted, years-old boilerplate forms. Instead, discovery in the digital age must be tailored and limited to the needs of the case in light of the proportionality doctrine. The Primer is a call for “proactively transform[ing]” discovery requests, with a focus on the “reasonable particularity” mandate of Fed.R.Civ.P. 34. Maryland Rule 2-422(b) contains the same requirement.
The Hon. Paul W. Grimm put it a bit differently, referring to:
“Professor Steven Gensler’s excellent article [The Bulls- Eye View of Cooperation in Discovery] analogizing the discovery process in a civil case to target shooting. No one shoots at a target by aiming for the outermost circles. You aim first for the bull’s- eye. Discovery should be approached in the same way—go first for what is most important, then follow up (if needed) with the information of lesser value. . . . The goal is to avoid the ‘I want everything— and a pony!’ approach to discovery. . . .”
Much of what Sedona suggests has long been recognized in the District of Maryland. Thus, the Primer states that a request cannot be particularized if it contains “boilerplate definitions.” Primer at 2, 5 n. 20, 18-19. Appendix D to the Local Rules of the District of Maryland has, for years, stated:
This Court has stated that the use of reasonable definitions may be helpful. Diversified Products Corp. v. Sports Center Co., 42 F.R.D. 3, 4 (D. Md. 1967). This Court has also stated that unreasonable definitions may render interrogatories so burdensome that objections to the entire series should be sustained, with sanctions. Id.
The Primer explains why overbroad instructions and definitions are improper, running afoul of the “reasonable particularity” requirement. In Appendix D to the Local Rules, the District of Maryland provides “safe harbor” samples of instructions and definitions.
The suggestions in the Primer should not be new to Maryland practitioners. For example, the Primer suggests discussion with opposing counsel. The District of Maryland’s ESI Principle 1.02 recommends cooperative exchanges of information. Further, the Primer cites Mancia v. Mayflower Textile Servs. Co., 250 F.R.D. 354, 356 (D. Md. 2008), for the proposition that Rule 26(g) requires a certification that discovery is not unreasonable or unduly burdensome considering the needs of the case. Primer at 7 n. 26.
Many of the Primer’s principles have long been discussed in the literature. For example, the Primer extensively analyzes “any and all” requests, Primer at 14, passim, a topic that Craig Ball has described as a “boil the ocean approach….” Requests for “Any and All” Documents Are Obsolete – E-Discovery LLC (ediscoveryllc.com) (quoting Craig Ball)(Feb. 4, 2021), and that Sedona discussed years earlier in “Federal Rule of Civil Procedure 34(b)(2) Primer: Practice Pointers for Responding to Discovery Requests,” 19 Sed.Conf.J. 447, 464, 467, 469 (2018). To the same effect, The Hon. Paul Grimm, Charles Fax, and Paul Sandler, criticized such requests in “Maryland Discovery Problems and Solutions” (Md. State Bar Ass’n. 2020), 28-29, 83, and earlier editions.
One solution offered by the Primer is “sufficient to show” requests, while Judge Grimm and his co-authors suggest limiting the inquiry to “material” and “principal” facts, as opposed to “all” facts. Cf. Primer at 22 with Judge Grimm, et al., at 59.
All that said, or written, the Primer is a valuable resource. It provides a well-researched, peer-reviewed, analysis of a key component of civil litigation in a single resource. It includes practical suggestions:
The Primer’s theme, and substantial contribution, is its insistence that discovery requests should not be “like a giant broom, sweeping everything in their path, useful or not,” and its practical solutions. Primer at 10 (citation omitted).
Citing S. Gensler, “Bull’s-Eye View of Cooperation in Discovery,” 10 Sedona Conf. L.J. 363 (2009); The Hon. P. Grimm, “Practical Ways to Achieve Proportionality During Discovery and Reduce Costs in the Pretrial Phase of Federal Civil Cases,” 51 Akron L. Rev. 721, 734 (2017).