Discovery Process is Not Privileged, Court Rules: eDiscovery Case Law

After Wednesday’s last EDRM case law webinar of the year, it’s never too early to start on next year’s cases! In Vasoli v. Yards Brewing Co., LLC, No. 21-2066 (E.D. Pa. Nov. 1, 2021), Pennsylvania District Judge Wendy Beetlestone, after “shortcomings” were found with defendants’ approach to searching for responsive documents, rejected the defendants’ objection to the plaintiff conducting a Rule 30(b)(6) deposition on the grounds that their discovery process is protected and privileged, ruling that information on the discovery process is not privileged.

Case Background

In this employment discrimination and retaliation case, the defendants (without the plaintiff’s input) chose 27 search terms and a limiting time period to electronically search for documents responsive to the plaintiff’s document requests, but it became apparent that the defendants’ search terms were underinclusive during a fact deposition of the plaintiff’s supervisor. For example, an email forwarded from her supervisor to the defendant CEO regarding the plaintiff’s complaints about the reduction in her workload during her pregnancy (sent before she was terminated) was not. The plaintiff claimed the email was integral to her retaliation claim because she was fired by the CEO two days after it was sent to her supervisor and that the unproduced version established that the CEO was aware of Plaintiff’s complaints before she was terminated.


Following the deposition, the defendants produced the email in question, but the plaintiff expressed “serious concerns” about their search for responsive documents. The Court held a telephonic discovery dispute conference during which “it became clear that there were shortcomings with how Defendants went about searching for documents responsive to Plaintiff’s discovery responses”. The Court contemplated as a sanction for the defendants’ conduct that the plaintiff be permitted to take a deposition pursuant to Federal Rule of Civil Procedure 30(b)(6) of a person familiar with how the search had been conducted. Defendants protested because, in their view, their discovery process is protected and privileged.

Judge’s Ruling

Asking the question “are the steps that a party takes in gathering documents to respond to a document requests protected from disclosure under the attorney-client privilege or the work-product doctrine?”, Judge Beetlestone stated: “In the Third Circuit, the attorney-client privilege is limited to confidential communications between a lawyer and his or her client to secure a legal opinion, legal services or assistance in a legal proceeding…Relatedly, the work-product doctrine protects from disclosure intangible and tangible things prepared in anticipation of litigation that reflect an attorney’s thoughts or opinions…Neither the privilege nor the doctrine, however, protects facts from disclosure.”

Continuing, she stated: “While a party’s discovery efforts likely involve communications with counsel, a factual description of what a party did to meet its discovery obligations under Rule 26 does not necessarily require the disclosure of confidential client communications…Moreover, the practical steps taken by an attorney and/or her client to identify responsive documents do not necessarily encroach on the thought processes of counsel. Instead, the steps used to identify responsive documents “go[ ] to the underlying facts of what documents are responsive to Plaintiffs’ documents requests.”…Thus, as neither the attorney-client privilege nor the work-product doctrine prohibit the disclosure of factual information, the steps that a party took to search for and produce relevant documents are discoverable.”


Concluding, she added, finding that that information on the discovery process is not privileged: “A holding to the contrary would go against the spirit and purpose of the discovery rules. While discovery is necessarily conducted in the adversarial context of litigation, Rule 26 of the Federal Rules of Civil Procedure demands cooperation between the parties’ counsel to identify and fulfill legitimate discovery needs… At each stage of the discovery process outlined in the Rule, counsel are expected to be transparent and communicate with one another so that they can reach agreement without judicial intervention. These expectations hold even more true for electronic discovery. For example, Rule 26(f)(3) requires the parties to develop a discovery plan, and specifically directs them to discuss ‘any issues about disclosure, discovery, or preservation of electronically stored information [i.e., ESI]….’ Fed. R. Civ. P. 26(f)(3)(C)…Since communications between opposing counsel are not privileged and the discovery rules direct opposing counsel to communicate with each other when crafting their discovery procedures, it follows that, when counsel follows these rules and conducts discovery correctly, their methods are not necessarily privileged. It would go against reason to find that the steps a party takes to identify responsive documents are privileged when those steps result in an evasion of discovery obligations by not collaborating on their discovery and ESI search strategies. Such a holding would reward attempts to circumvent the collaborative process envisioned by the discovery rules and would run contrary to their instruction that this kind of gamesmanship should instead be met with sanctions”.

Finding that that information on the discovery process is not privileged, Judge Beetlestone stated: “As nothing prevents the disclosure of discovery search methods, the sanction of a 30(b)(6) deposition into Defendants’ discovery methods shall be imposed.”

So, what do you think? Do you agree that information on the discovery process is not privileged?  If you don’t, please explain why!  😉  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, an Affinity partner of eDiscovery Today.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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