Court Denies Plaintiffs’ Request for Discovery About Discovery as “Mere Speculation”: eDiscovery Case Law

In the last case we covered involving this judge, he quoted Ron Burgundy.  This time, he quoted someone a bit more literary!  :o)

In Gross v. Chapman, No. 19 C 2743, (N.D. Ill. July 28, 2020), Illinois Magistrate Judge Jeffrey Cole denied the plaintiffs’ motion for additional discovery on discovery in part and granted it in part “but only insofar as defendants must produce the attachments to text in reviewable format within 10 days of this Opinion”.  Judge Cole also denied the defendants’ motion for a protective order barring discovery of their vendor as moot, given the ruling on plaintiffs’ motion.

Case Background

In this case where the parties’ dispute stemmed over a wedding called off, the bride’s family sued the groom’s family over wedding expenses that had been spent to date by them.  As Judge Cole stated:

“With sincerest apologies to William Shakespeare, ‘[f]or never was a story of more woe than this of [Aliza] and her [Adam].’ No, ‘Aliza and her Adam’ doesn’t have quite the ring to it that ‘Juliet and her Romeo’ does and, as it happens, with good reason, because the tale is not remotely romantic. In our story of woe, Adam’s sister (and new mother) gives the bride-to-be Aliza grief over her adults-only wedding reception policy, Adam takes his sister’s side over his fiancee’s, and Aliza – living at Adam’s castle – vents over the phone with her parents about Adam and his family… Importantly, our lovers are not star-crossed, they are tech-crossed. Adam and his dad listen to the scorned Aliza’s conversation with her parents over a remote surveillance system installed in Adam’s home.”  Ultimately, “Aliza gives Adam an ultimatum that the surveillance tech be removed, Adam calls off the wedding and kicks her out, more texts ensue, and Aliza’s mom and dad are out 100,000 florins already spent on the wedding. And so, our Capulets – Aliza, mom, and dad – are suing our Montagues – Adam, mom, and dad – in federal court.”

While the defendants had already produced three productions of text messages and emails, the plaintiffs wanted additional discovery and was unsatisfied when the expanded time frame only yielded 28 text messages, stating it was “too low”.  So, the plaintiffs requested an additional three interrogatories regarding the process and requested to depose the third party vendor the defendants used to conduct the tech-based ESI searches.

Judge’s Ruling

In response to the plaintiff’s contention that the last production was too low, Judge Cole stated: “Of course it is much lower. It covers a period after the breakup, when common experience and common sense would dictate that the number be lower.”

As for the plaintiff’s requests for additional interrogatories regarding the process, Judge Cole stated: “While most courts acknowledge that ‘discovery about discovery’ can be appropriate under certain circumstances, those circumstances are limited to times when one party’s discovery compliance has reasonably been drawn into question, or that there is ‘an adequate factual basis’ for an inquiry.”  In addition, he noted that “all that the plaintiffs provided here – in a motion barely 3 pages long – was mere speculation that there must be more texts about the breakup. Plaintiffs did not even cite a case in support of their motion to compel. That is not only a waiver under ordinary circumstances,…it is woefully insufficient to go down the rabbit hole of discovery on discovery.”

Judge Cole also added: “With all due respect to Aliza and her mom and dad, this case is not the complex, gigantic, multi-million dollar gaming industry bankruptcy plaintiffs’ counsel hopes to liken it to by relying on the grant of ‘discovery on discovery’… It should be obvious that given what this case is about, and that a large volume of ESI has already been produced at significant expense to the defendants, discovery on discovery with no basis other than plaintiffs’ hopeful guess that there must be more texts about an engagement breakup is substantially out of proportion to the needs of the case… Nearly 5,000 texts is enough. The parties’ ‘ancient grudge’ shall not be allowed to ‘break to new mutiny.’”

As a result, Judge Cole denied the plaintiffs’ motion for additional discovery on discovery in large part as discussed above.

So, what do you think?  What should be the threshold to request discovery about discovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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