“Rolling Discovery” Held to Be Improper
Sedona Conference: Navigating AI in the Judiciary
March 1, 2025“Self Help” Discovery Results in Striking of Wrongfully Obtained Evidence
March 3, 2025In Rouse v. H.B. Fuller Co., 2025 WL 573278 (D. Minn. Feb. 21, 2025)(Bryan, J.), the District Judge overruled objections to several rulings of the Magistrate Judge. “Rolling discovery” was not permitted:
In August 2024, the Magistrate Judge decided that continuous rolling discovery after April or September 2023 would be unduly burdensome based on Defendants’ representations about it…. However, the Magistrate Judge did not categorically close the door on post-April or-September 2023 discovery; instead, he left Plaintiffs an option to propound future focused discovery requests.
“Rolling discovery” differs from “rolling production.”
“Rolling production” is a standard practice. A party preserves, collects, searches, and produces documents in batches, after reviewing each batch for privilege and responsiveness.
In “rolling discovery,” a/k/a “ongoing” or “continuous” discovery, the discovering party requests that the producing party continue its collection, review, and production as an ongoing process to capture newly-created documents. See Request to Produce Documents Collected “to the Present” is Improper “Rolling Discovery” (Dec. 11, 2024).
The United States Magistrate Judge addressed the issue in Rouse v. H.B. Fuller Co., 2024 WL 4973028 (D. Minn. Dec. 4, 2024)(Docherty, J.). “[A]s the Court has stated multiple times, ‘rolling discovery’ will not be permitted, no matter how a request for it is framed.” Id. at *2; see Request to Produce Documents Collected “to the Present” is Improper “Rolling Discovery” (Dec. 11, 2024).
In overruling the objection to that holding, the District Judge wrote that:
Instead of propounding a focused request, Plaintiffs requested general rolling discovery. In November 2024, the Magistrate Judge again declined to order such discovery. Plaintiffs’ attack on the merits of the Magistrate Judge’s decision to disallow general post-April or -September 2023 discovery was timely only after the August 2024 ruling and now is an untimely end-run on that ruling. The objection is overruled.
The prior blog discusses the differences between the Fed.R.Civ.P. 26(e) duty to supplement and “rolling discovery.”
