Can parties request discovery to seek out further discovery? Courts have found that it is allowable, but in limited circumstances. For example, in the recent case Linet Americas, Inc. v. Hill-Rom Holdings, Inc., the United States District Court for the Northern District of Illinois held that discovery requests to compel further discovery are permissible, if narrowly tailored.

In this case, defendant Hill-Rom sought discovery to determine when plaintiff Linet’s duty to preserve began. Hill-Rom claimed Linet had a duty to preserve when Linet reasonably anticipated litigation. Defendant further claimed that plaintiff reasonably anticipated litigation when it retained counsel for this matter in January 2020. Despite defendant’s contention that plaintiff’s duty to preserve arose in January 2020, plaintiffs disposed of the ESI of four former employees (in accordance with their regular business practice) dating to April 2020—three months after retaining counsel. 

Here, the court allowed the request in part because “one party’s discovery compliance has reasonably been drawn into question” and “plaintiffs control the timing of litigation.” The court ordered plaintiff to produce the retention letter with counsel (with any privilege redactions listed on a redaction log), in order to determine when plaintiff anticipated litigation. Plaintiff was also required to produce its retention policy for the period December 2019 to April 2020. 

The key takeaway is that discovery about discovery may be allowed in some circumstances, but it should be narrowly tailored to those circumstances. In this case, it was to determine when plaintiff’s duty to preserve arose. For more information on the case, and commentary from Reed Smith’s David Cohen, please read the Exterro Case Law Alert here.