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Case shelved under Proportionality

Court OK’s Discovery on Discovery in Limited Situations

America West Bank Members v. State of Utah
D. Utah November 10, 2021
Why This Case Is Important

With the increased focus and attention to proportionality, courts rarely permit parties to indulge in “discovery on discovery.” However, there are exceptions. This case showcases when the court views discovery on discovery as warranted.


In this violation of due process case, the plaintiff sought to compel additional discovery (i.e., “discovery on discovery”) after alleging that the defendants deleted or lost responsive documents throughout the discovery process. The plaintiff requested the following in its motion to compel:

"Discovery on discovery" to discern the identities of individuals whose emails would have been responsive to its discovery requests were those emails still available; the identification of documents or categories of documents which are no longer available; and an explanation from the State Defendants as to why other responsive documents were not produced.”

The defendants did not dispute that data as lost, but contended that relevant data was produced based on the fact that "emails by those employees [with lost email accounts] to others have been produced as they appear in recipients' email accounts."

The defendants opposed the motion based on two factors: (1) the request to compel discovery was served after the discovery deadline, and (2) the plaintiff never met its burden to prove that “discovery on discovery” was warranted.


• Court rules in favor of the plaintiff. The court found that discovery on discovery was warranted, but is “strictly limited to the purged former employee email accounts.”

• Limited scope of discovery on discovery. Even though the plaintiff requested 14 interrogatories, the court found that this request was “neither reasonable nor proportional,” since discovery on discovery is limited because it “should be closely scrutinized in light of the danger of extending the already costly and time-consuming discovery process.”

• Limited cases for discovery on discovery. The court ruled that discovery on discovery is appropriate only “where there is reasonable doubt about the sufficiency of a party’s response” based on fact, not mere speculation.

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Legal Analysis
On America West Bank Members v. State of Utah
David Cohen, Esq., Chair - E-Discovery Group, Reed Smith LLP
David Cohen, Esq., Chair - E-Discovery Group, Reed Smith LLP

FRCP 26(b)(1) generally limits discovery to “matters relevant to any party’s claim or defense...” Nevertheless, where there is an adequate factual basis to doubt the sufficiency of a party’s discovery compliance, as in this case, courts will allow some discovery on discovery, strictly limited to avoid unnecessary time and expense.

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