It's not uncommon to see discovery requests and 30(b)(6) topics asking about the location of documents. In fact, up until 2015, Rule 26 specifically provided for this kind of discovery:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense--including the existence, description, nature, custody, condition, and location of any documents or other tangible things . . . .
FRCP 26 (2014).
In 2015, in a (highly commendable) effort to shorten Rule 26, that example was dropped. Now it just reads:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case . . . .
FRCP 26 (2023).
The committee notes made clear that this was not intended to impact the scope:
After allowing discovery of any matter relevant to any party’s claim or defense, the present rule adds: “including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter.” Discovery of such matters is so deeply entrenched in practice that it is no longer necessary to clutter the long text of Rule 26 with these examples. The discovery identified in these examples should still be permitted under the revised rule when relevant and proportional to the needs of the case.
Notes of Advisory Committee on 2015 Amendments to FRCP 26.
The committee explains that these kinds of requests are useful to frame up discovery in a case:
Framing intelligent requests for electronically stored information, for example, may require detailed information about another party’s information systems and other information resources.
Id.
These kinds of requests don't come up in every case. But sometimes parties investigate these issues at the outset so that they know what documents should be coming. They may also come up later in the case, e.g. after questions arise about whether there are documents that the other side may not have produced.
When these kinds of requests come up, parties usually tend to agree that they are valid discovery topics—even if they can lead to burdensome disputes. But a ruling from Judge Williams this week may provide some clarity on this issue.
In International Business Machines Corporation v. Zynga Inc., C.A. No. 22-590-GBW (D. Del.), after some production by defendant, the plaintiff sent 30(b)(6) topics seeking "the identity, type, location, and organization" of various of categories documents.
When defendant refused, plaintiff brought a discovery dispute to compel. The Court found that defendants' detailed requests constitute prohibited "discovery on discovery":
First, the Court must determine whether the Topics seek discovery on discovery. Other than Topic 18, the Topics request "the identity, type, location, and organization" of various documents. IBM argues that it "is not seeking testimony regarding how Zynga is collecting documents but rather is seeking testimony focused on the substance of the case[—]specifically the identity, type, and location of relevant documents." . . . However, IBM has failed to "articulate any reason why this information [i.e., the identity, type, location, and organization of documents] bears any relevance to the substantive merits of this case." D.I. 117 at 1. Even after giving IBM the benefit of the doubt, the Court finds that Topics 11, 13, 15-17, and 19-23 seek discovery on discovery, although IBM does not identify it as such. These Topics seek inquiries into Zynga's collection, preservation, and retention efforts of certain documents as well as the existence and location of such documents.
International Business Machines Corporation v. Zynga Inc., C.A. No. 22-590-GBW, D.I. 127 (D. Del. Aug. 14, 2023).
Here are a few of the specific requests, for context:
11. The identity, type, location, and organization of financial documents related to the Accused Products, including: . . . a. Defendants’ revenues, costs, and profits [and similar categories b-h]
13. The identity, type, location, and organization of documents related to metrics Defendants track related to the Accused Products, including: . . . a. DAUs (Daily Active Users) [and similar categories b-m]
15. The identity, type, location, and organization of documents regarding the relation between the metrics in Topic No. 13 and Defendants’ revenues, costs, and profits for the Accused Products.
16. The identity, type, location, and organization of documents regarding how the availability of Sign-On-Services in the Accused Products affects the metrics listed in Topic 13.
International Business Machines Corporation v. Zynga Inc., C.A. No. 22-590-GBW, D.I. 120-1 at 1-3 (D. Del. July 26, 2023).
The Court went on to find that plaintiff had not made the showing necessary for discovery-on-discovery, particularly where the defendant said it would produce the various categories of documents:
"[C]ourts are generally reluctant to order discovery on discovery, so a party seeking such relief must make a threshold showing that significant, relevant, and non-cumulative information has been withheld or overlooked.'" ECB USA, Inc. et al v. Savencia, S.A., C.A. No. 19-731-GBW-CJB, D.I. 306 (D. Del. Jan. 18, 2023) (quoting British Telecomms. PLC v. IAC/Interactivecorp, C.A. No. 18-366-WCB, 2020 WL 1043974, at *7 (D. Del. Mar. 4, 2020)). IBM has failed to make such a threshold showing here. In fact, Zynga has represented to the Court that it has agreed to produce (and has already started to produce) the categories of documents referenced in these Topics. D.I. 117 at 1. "'Speculation that there is more will not suffice; if the theoretical possibility that more documents exist sufficed to justify additional discovery, discovery would never end. Instead of chasing the theoretical possibility that additional documents exist, courts have insisted that the documents that have been produced permit a reasonable deduction that other documents may exist or did exist and have been destroyed.'" Brit. Telecommunications, 2020 WL 1043974, at *7 (quoting Hubbard v. Potter, 247 F.R.D. 27, 29 (D.D.C. 2008)). Here, IBM has failed to articulate with specificity withheld or overlooked documents referenced in Topics 11, 13, 15-17, and 19-23 other than pure speculation. Therefore, the Court denies IBM's request to order Zynga to designate a witness to testify regarding Topics 11, 13, 15-17, and 19-23.
I expect this order will be useful next time a dispute about these kinds of requests comes up.
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