Anyone who knows this blogger is well aware this is a topic near and dear to her heart. For years, plaintiffs railed against defendants making “boilerplate” objections to discovery requests. So much so that the issue was addressed by the 2015 Amendments to the Federal Rules of Civil Procedure. While Rule 33 for interrogatories already had a specificity requirement, Rule 34 was amended to require document request responses state “with specificity the grounds for objecting to the request, including the reasons” and each “objection must state whether any responsive materials are being withheld on the basis of that objection.” But what about the opposite problem—requests that lack sufficient specificity.
The Federal Rules have long required that discovery requests “describe with reasonable particularity” the information sought, and the 2015 Amendments added Rule 26(b)’s requirement that discovery be limited to information that is relevant and proportional to the needs of the case. In fact, Rule 26(g) requires counsel to certify that every discovery request is “neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.”
Nevertheless, vague and overbroad discovery requests abound. The primary offender being requests for “any and all” documents or information. Plaintiffs believe they need such requests to reach the largest scope possible. In reality, all “any and all” requests end up doing is wasting everyone’s time resolving objections to narrow the scope to what is appropriate and proportional, likely through both meeting and conferring and motion practice. “Any and all” requests are particularly problematic in the context of ESI where a request for “all” documents could require the production of every identical copy located anywhere on a company’s servers. A reasonable basis for an objection.
Cases are fact specific and, therefore so should be discovery. For each discovery request, the plaintiff should be able to articulate how the information sought relates to an allegation in the complaint. If they can’t, then they aren’t doing their job. There is no requirement that plaintiffs serve all of their interrogatories and document requests at once. That’s how we get into this mess in the first place. Plaintiffs shoot off dozens of requests without stopping to think about what they really need and/or how to prioritize it. Some of the best and most productive discovery processes we’ve been involved with were when plaintiffs recognized that discovery is an iterative process and that discovery disputes are best negotiated in context. That is why staging discovery can be so important. Plaintiffs serve a few key requests that undisputedly seek relevant and proportional materials. They review the information and documents produced, get a basic understanding of the issues, engage in ongoing meet and confers to explore what else is needed, and if necessary, serve additional, “reasonably particular” requests based on their now informed position. We are not being Pollyanna-ish here. We know even an iterative process won’t be problem free. But specificity can sure smooth out a lot of bumps in the road.
Now, if you look for case law on whether “any and all” discovery requests are acceptable or over broad, you will quickly discover that, as at Alice’s Restaurant, “you can get anything you want.” (We found this reference in Sullivan v. Glock, Inc., 175 F.R.D. 497, 505 (D. Md. 1997), and it was too good not to use). Afterall, courts are given broad discretion when it comes to determining the appropriate scope of discovery, which is driven by the facts of the case. But just like Arlo was singing his song “cause you may know somebody in a similar situation, or you may be in a similar situation, and if you’re in a situation like that,” we want you to know about In re: Exactech Polyethylene Orthopedic Products Liability Litigation, MDL 2044, 2024 U.S. Dist. LEXIS 184064 (E.D.N.Y. Oct. 3, 2024).
In the Exactech MDL, about 1800 plaintiffs allege that defendant’s polyethylene hip, knee, and ankle implants were manufactured and packaged in such a way that they were prone to premature wear that could lead to device failure, implant loosening, and pain. Id. at *15-17. The court has entered numerous case management orders and substantial discovery was agreed to and produced. However, the parties were unable able to resolve their disputes in five categories.
First, plaintiffs sought to compel “all” communications or interactions between defendant and foreign government agencies and “all” investigations of defendant by foreign government agencies arguing that they went to defendant’s knowledge of the risks at issue. Id. at *23-25. The court agreed that the requested information may be relevant to knowledge but found the demand for “all” such documents to be overly broad and unduly burdensome (burden outweighed likely benefit). Id. at *29. Plaintiffs’ motion to compel was denied subject to them re-drafting the requests to make them “narrowly tailored.” Id.
Second, plaintiffs moved to compel defendant to produce “all” discovery produced in “similar” cases pending in state court. This is known as “cloned,” “copycat,” or “piggyback” discovery. Defendant objected on the grounds that the other cases involve different facts, claims, and injuries. Particularly, one case that plaintiffs sought the discovery from was an Anti-Kickback Statute and False Claims Act case. Again, the issue is not that some of the documents produced in those other cases may be relevant, they likely are. The issue is that a generic request for “all” discovery in another case is inherently non-specific and overbroad in violation of the Federal Rules.
Here, the court concluded that discovery in the non-products liability case was not discoverable because the claims were too dissimilar. Id. at *32-33. The court also denied the request for the discovery in the other products liability case because plaintiffs were not specific as to what documents from that production they were seeking and the court could not tell whether they would be relevant. Id. at *34. The court was willing to entertain a revised request narrowly tailored to the products at issue in the MDL.
Third, plaintiffs made three requests related to merger documents. The first requested “all” due diligence documents. Again, “all” was plaintiffs’ undoing. Their argument that the due diligence documents contain information about defendant’s contingent liabilities and knowledge of product defects only demonstrated that some of the documents might be relevant. As written, the request was “overbroad and disproportional to the needs of the case,” and amounted to a fishing expedition through possibly millions of documents. Id. at *36-37. Plaintiffs’ motion was denied but they were permitted to submit a revised and narrowly tailored request. Second, plaintiffs’ request for financial information contained in the merger documents was denied in its entirety as not seeking discoverable information. Third, plaintiffs asked whether defendant disclosed “any issues” associated with its polyethylene products in the merger documents. The court concluded that was a sufficiently narrow request to which defendant could answer yes or no but ordered no further document production until plaintiffs revised their requests.
Fourth, while defendant had agreed to produce twenty-seven custodial files, plaintiffs sought an additional six. The court acknowledged that production of ESI presents “special challenges.” As noted above, ESI is pervasive and therefore requests for “all” ESI are rarely proportional. So, the party requesting additional custodians bears the burden of demonstrating that those custodians “would provide unique relevant information.” Id. at *43. In other words, the new custodians cannot be duplicative of those already produced, such as requests for multiple people in the same department or who perform the same task. Here, the court examined each of the six custodians and found (i) two files were inaccessible and not sufficiently relevant or unique to justify the expense of searching through backup files to reconstruct them; (ii) another was sufficiently relevant, but plaintiffs will have to share in the costs of its production; (iii) two files that were available were sufficiently relevant and unique to require production, and (iv) the request for the last file was denied as cumulative. Id. at *44-52.
Finally, defendants were using TAR (Technology Assisted Review or machine learning) to identify responsive documents for production. The parties had agreed on a TAR Protocol, except Plaintiffs wanted a provision that required Defendants to give them access to the non-privileged documents that were determined to be non-responsive. Plaintiffs argued it was so plaintiffs could “explore” defendant’s responsiveness. The court correctly recognized this as an attempt to conduct “discovery on discovery,” which is only allowed where the requesting party “provide[s] an adequate factual basis to justify the discovery” which can make an already expensive and time-consuming process even more so. Plaintiffs had no such justification. They pointed to no deficiency in defendant’s production or unreasonableness in the production process. Id. at *54-55. The protocol itself had sufficient transparency into the process defendant would use and defendant was well aware of its discovery obligations.
Throughout this opinion, the court sends plaintiffs back to write a better question—one that is “narrowly tailored” to the facts of the case and the issues in dispute. This is not an unreasonable request. If plaintiffs focused more closely on specific facts rather than scorched earth, they could serve discovery that was efficient–less costly (for defendants), allowed for quicker responses (for plaintiffs), and decreased court involvement. A win-win-win situation. But for now, we are just like Arlo, “waitin’ for it to come around.”