Keeping the Curtain Closed: Connecticut District Court Denies Discovery on Discovery Where No Basis to Claim Deficiencies Shown
Despite the broad scope of discovery under Federal Rule of Civil Procedure 26, courts are generally reluctant to permit “discovery on discovery,” i.e., discovery requests related to a party’s efforts to search for, locate, preserve, and collect relevant electronically stored information (ESI). In a case brought against Wesleyan University (the “University”) by a student expelled for alleged cheating, the United States District Court for the District of Connecticut recently declined to compel such discovery on discovery, where the plaintiff requested that the defendant identify and “catalog all of the devices on which responsive communications reside.” The discovery request was made well after the Rule 26 conference – discovery had been ongoing for nearly two years – and the plaintiff waited almost a full year after serving the requests to file her motion to compel. In light of these facts and the plaintiff’s failure to establish an “adequate factual basis” for requiring such discovery on discovery, the court denied portions of the plaintiff’s motion to compel.
In Doe v. Wesleyan University, the plaintiff, a former student at the University, was expelled for allegedly cheating on her exams by improperly accessing the University’s “computerized learning management system” called “Moodle” during her exams. The University conducted an investigation and held an Honor Board proceeding, and the board decided that the plaintiff “more likely than not” cheated on five of her nine exams. After two unsuccessful appeals, the University expelled her.
The plaintiff sued the University, alleging that it “broke [its] promise” to provide a “fair disciplinary process” when it “fail[ed] to comply with its obligations, standards, policies and procedures set forth in [its Student] Handbook.” The plaintiff served interrogatories requesting that the University “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.’” The University objected to the requests, asserting that they were overbroad, irrelevant, and unduly burdensome.
The court began its analysis by noting the “obviously broad” scope of discovery under Rule 26(b)(1), and explained that, “the scope of discovery has long included information about ‘the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter.’” With respect to the plaintiff’s interrogatories, the court first found that the interrogatories did “not seek any information at the core of the concept of relevance.” However, the court continued its analysis, commenting that “the scope of discovery is not strictly limited to information that is logically relevant to a claim or defense.” The comment is interesting in light of the 2006 amendments to Rule 26, which were intended to narrow the scope of discovery to information relevant to claims and defenses and proportional to the needs of the case considering numerous factors. This proportionality restriction has been interpreted by most courts to give greater force to the pre-amendment “claims and defenses” limitation.
The court noted that the plaintiff’s motion was framed “as if she had only recently filed her case, and only recently begun discovery,” asserting that she needed a list of the University’s “relevant electronic devices ‘to assist in developing an ESI protocol and framing further discovery demands.’” But the court noted that discovery had been open for “nearly two years” and the University had produced “nearly 3,000 pages of responsive communications,” 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.”
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.
This decision is another example of how courts will routinely disfavor and “closely scrutinize” requests for discovery on discovery. As in Doe, many courts will deny requests for discovery on discovery where a party has not demonstrated an adequate factual basis and/or demonstrated that the responding party acted in bad faith or engaged in discovery misconduct. For a litigant seeking discovery on discovery offensively, it is critical to establish a strong factual record to support such requests. On the flipside, in defending against discovery on discovery, it is imperative for parties to prepare and document a defensible discovery plan, memorialize how they have collected and preserved relevant ESI, and be prepared to otherwise show the absence of bad faith or inadequate processes. Furthermore, as discussed in our recent article, the negotiation of a comprehensive ESI protocol between the parties to govern discovery can be a very effective tool in potentially preventing costly discovery on discovery.