Haroun v. ThoughtWorks, Inc.

Background

Plaintiff Madji Haroun moved under Federal Rule of Civil Procedure 37 to compel discovery from defendants ThoughtWorks, Inc. and Nathan Elsberry, in his individual and professional capacities. Haroun sought an order requiring the defendants to identify all sources of electronically stored information (ESI), including information that could show where responsive documents were located and whether the defendants were adequately searching for and reviewing those documents.

Haroun argued that he needed to know whether documents had been deleted and whether deleted documents might remain available in other ESI sources. The defendants responded that they had disclosed the multiple email, chat, and collaboration platforms they would search. They also argued that identifying every possible ESI system could include numerous systems, such as accounting and customer databases and programming-code repositories, and would be unduly burdensome and costly.

Court’s analysis

The court treated Haroun’s request as “discovery on discovery”—a request for information about how the opposing party conducts discovery. The court explained that a party seeking this type of collateral discovery must provide an adequate factual basis for it. Courts must also closely examine such requests because they can unnecessarily extend an already costly and time-consuming discovery process.

The court noted that counsel ordinarily is not required to disclose how documents are collected, reviewed, and produced. Under Rule 26(g), counsel certifies that, after a reasonable inquiry, the discovery response is complete and correct to the best of counsel’s knowledge, information, and belief. The court also stated that the discovery rules generally require cooperation and discussion between the parties concerning ESI.

Ruling

Judge Lewis J. Liman denied Haroun’s motion. The court found that Haroun had not identified gaps in the defendants’ ESI production, any reason to believe documents had been deleted, or any basis to assert that the defendants were failing to search relevant and reasonably available ESI sources. The court said Haroun could ask at a deposition about produced and unproduced documents and could review the production for obvious gaps. If that process created a factual record, it might support later discovery on discovery, but the court found no adequate basis for it at that time.

The court also stated that the defendants represented, and Haroun did not dispute, that a request to compel production of documents responsive to certain search terms was moot. The court did not decide whether that request complied with Rule 26.