Magistrate Judge Fallon addressed a discovery dispute last week, and denied a motion to compel a response to interrogatories regarding efforts to preserve documents in anticipation of litigation:
ORAL ORDER: Having reviewed the parties' discovery dispute letter submissions . . . , IT IS HEREBY ORDERED that: . . . (3) Defendant's request to compel Plaintiff to supplement its responses to Interrogatory Nos. 16-17 and Request for Production Nos. 104-05 is DENIED. Discovery regarding efforts undertaken by Plaintiff to preserve documents in anticipation of litigation is barred under the Court's Default Standard for Discovery of ESI and Fed. R. Civ. P. 26(b)(3)(A) and (B), particularly in the absence of a credible allegation of spoliation. See Brand Energy & Infrastructure Servs., Inc. v. Irex Corp., 2018 WL 806341, at *2 (E.D. Pa. Feb. 9, 2018) (denying request for documents reflecting servers defendants accessed or used for storage as impermissible "discovery on discovery" without the requisite showing of bad faith or withholding of documents).
Shilpa Pharma, Inc. v. Novartis Pharmaceuticals Corp., C.A. No. 21-558-MN (D. Del. June 8, 2022).
The Court did not cite a specific section of the Default Standard, but that standard states:
d. Privilege
. . .
(iii) Activities undertaken in compliance with the duty to preserve information are protected from disclosure and discovery under Fed. R. Civ. P. 26(b)(3)(A) and (B).
Note that this section is under the heading "Privilege," and in practice parties often log their litigation hold notices on privilege logs. The Court's ruling here suggests another reading, where litigation hold notices are simply not subject to discovery, and need not even be logged.
The specific interrogatories at issue here sought preservation information, and were fairly tame all told:
INTERROGATORY NO. 16: . . . Identify any and all Litigation Holds [plaintiff] Shilpa issued related to the 816 Patent, including (a) when the hold was issued; (b) who gave the notification or instruction to any Shilpa employee, (c) who received the notification or instruction, and (d) what form the notification or instruction took.
INTERROGATORY NO. 17: . . . Identify all steps Shilpa took to preserve paper documents in the possession of Dr. Chaturvedi or Dr. Shrawat upon their departure from Shilpa.
Shilpa Pharma, Inc. v. Novartis Pharmaceuticals Corp., C.A. No. 21-558-MN, D.I. 113 Ex. A (D. Del. June 8, 2022).
Interrogatory 16 asks for the kinds of information that would typically be available on a privilege log—but the order indicates that even that limited information need not be produced.
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