Discovery on discovery -- i.e., discovery asking how you're collecting documents, or when you started your litigation hold, or why all your documents smell like bubblegum -- is generally not allowed in Delaware (and most other districts I'm aware of). To get that sweet, sweet, disco on disco, you need to make a "threshold showing that significant, relevant, and non-cumulative information has been withheld or overlooked." British Telcoms. PLC v. IAC/Interactivecorp,. C.A. No. 18-366-WCB, 2020 U.S. Dist. LEXIS 37271, at *21 (D. Del. Mar. 4, 2020). This is a pretty big ask in the context of a discovery dispute, so we only rarely see the issue come up.
But it came up on Tuesday! The defendant in Scale Biosciences, Inc. v. Parse Biosciences, Inc., C.A. No. 22-1597-CJB, D.I. 412 (D. Del. May 27, 20215) complained that long into discovery the plaintiff had only produced 19 emails—not a lot in a patent case. Plaintiff responded that the small number of emails was due to its specific document retention policy. When Defendant pressed about what exactly this policy was, it came to light that the plaintiff had not issued a litigation hold until well after the complaint was filed, and had also neglected to search several email repositories. Accordingly, the defendant then moved to compel discovery regarding Plaintiffs document collection and retention policies, which plaintiff opposed citing the general policy against such discovery.
Judge Burke granted the motion to compel, noting the long series of mistakes that had lead to the present dispute:
As of the time of the briefing for this Motion, Roche was still in the process of producing responsive emails, even though fact discovery has long closed. Even in light of Roche’s late production of these e-mails, there is still an open question as to whether Roche has appropriately retained (and produced) relevant documents . . . Everybody makes mistakes, and there is not necessarily anything nefarious about what has happened here. Maybe, in the end, Defendant will have received from Roche all of the documents it is entitled to in discovery. But there can be no dispute that Roche’s document collection efforts (and its explanations regarding the same) have been delayed, shifting and error-filled—and that there is still real question about whether Roche retained and produced all of the documents it should have in this matter. Therefore, and for the reasons set out above, the required threshold showing has been made . . . In its briefing, Roche did not specifically object to any particular form of relief sought in Defendant’s proposed order, and so the Court has no basis to determine that any item requested therein is inappropriate. Thus, Roche shall provide the requested information to Defendant no later than 21 days from today’s date
Id. (internal citations omitted).
So there you go, something to cite next time you want discovery into what exactly the other side has been doing to collect documents over the last 2 years.
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