What’s Under the Hood? Navigating Meta-Discovery

What is meta-discovery?

Discovery on discovery, or meta-discovery, is discovery directed at the manner and methods that opposing counsel used to locate, preserve, search, review, and produce relevant information.

Examples of such requests include:

• A copy of the party’s document preservation policy
• A copy of the party’s litigation hold
• A copy of the party’s document review protocols
• A description of the process by which data or documents were collected

When is meta-discovery problematic?

While meta-discovery may be relevant in cases where there is a good faith reason to believe that the opposing party has destroyed or covered up information, reflexive requests for meta-discovery drive up discovery costs, cause unnecessary privilege disputes, and start an unnecessary fishing expedition into the sufficiency of a party’s document collection and review methodology.

How should parties respond to meta-discovery requests?

Parties faced with meta-discovery requests have several options to reduce or forgo the burden that these requests can add to an already burdensome discovery process. First, they should object to the requests on the grounds of relevance, undue burden, lack of proportionality, and the fact that the requests seek documents protected by the attorney-client privilege and work product doctrine to preserve those objections. Second, they should request a meet-and-confer with opposing counsel and ask for the good faith basis for the request, particularly in light of the privilege and relevance objections. Third, if necessary, they should file a motion for protective order requesting that the district court terminate any meta-discovery or at least highly limit discovery on the subject.

Conclusion

Unfounded requests for meta-discovery are becoming increasingly common. These kinds of requests raise serious questions concerning relevance, proportionality, burden, and privilege. While parties cannot prevent opposing counsel from propounding requests seeking this information, they should seriously consider seeking a protective order concerning baseless requests for meta-discovery.