Difficult Decisions About Cloned Discovery Can Leave Companies Seeing Double

Companies in the midst of government investigations and enforcement actions often must contend with follow-on civil litigation stemming from the same issues. Indeed, due to differing standards of proof, companies that are able to successfully ward off government enforcement actions may still find themselves mired in civil litigation that comes with even more significant discovery and exposure to financial liability.

In light of the growing volume and complexity of electronic discovery, litigants are increasingly resorting to seeking “cloned discovery.” Cloned discovery refers to a party’s efforts to obtain copies of discovery produced in a prior matter, such as documents, interrogatories, deposition transcripts, and other materials. On one hand, cloned discovery can be less burdensome, since it only involves copying what a company previously produced. On the other hand, cloned discovery may result in the production of irrelevant or incomplete discovery. Companies facing requests for cloned discovery have various options to choose from, each with its own risks and opportunities.

The most obvious option for a responding party may be to fully object to cloned discovery requests. Parties often object to such requests on the basis that they seek irrelevant information, are overly broad, impose an undue and disproportionate burden, or are duplicative of other discovery requests in the case. This puts the burden on the seeking party to demonstrate that their request is appropriate, often via a motion to compel. Courts often deny motions to compel production of all documents provided in prior litigation because “the discovery-seeking party must make a threshold showing of relevance.”¹ Still other courts have allowed cloned discovery where significant factual and legal overlap existed between the actions.²

In addition, the type of prior action may influence whether a court will order production. For instance, production of grand jury materials may invade the secrecy of grand jury proceedings protected under Federal Rule of Criminal Procedure 6(e)(2)(B), which limits the disclosure of “a matter occurring before the grand jury.” Pursuant to this rule, courts have declined to order reflexive production of all documents produced as part of a grand jury investigation.³ Further, courts may require a requesting party to show a “compelling necessity” to obtain documents produced in grand jury proceedings.⁴ Moreover, discovery from a prior case may be subject to confidentiality or protective orders that limit the extent to which it can be disclosed outside of the prior case.

However, objecting to cloned discovery also comes with considerable drawbacks. Litigating motions to compel risks frustrating the court and requires investment of time and effort. Restarting discovery in a follow-on civil action may lead to incurring significant costs. In some instances, the seeking party may ultimately end up obtaining information produced in prior actions by serving third-party subpoenas on government bodies.

Despite the risk of handing the seeking party more ammunition to use against them, some litigants choose to embrace cloned discovery.⁵ Duplicating production from a previous action can result in significant cost savings, and cooperating with discovery requests can be used as a bargaining chip in other discovery negotiations. Also, the scope of a civil case is often broader than a government investigation, so producing cloned discovery in lieu of responding to broader discovery requests may keep certain facts out of the case. Moreover, cloned discovery may make the necessary factual investigation more difficult compared to a smaller, more focused production, although parties may use requests for cloned discovery in addition to their own tailored discovery requests. Producing parties should also remain mindful that cloned discovery risks highlighting similarities between different cases and suggesting an unfavorable pattern of conduct.

As a third option, some litigants choose to selectively produce cloned discovery. A responding party may treat the universe of cloned discovery as a “custodian” and agree to run searches against it responsive to the seeking parties’ requests. Alternatively, parties may agree to produce tailored categories of documents, such as discovery relating to a certain geographic area or specific types of files. Partial production may allow the responding party to strike the right balance between limiting access to information and reducing costs.

In summary, cloned discovery is a critical issue for any company facing parallel litigation. There is no one optimal approach to responding to a request for cloned discovery, and courts do not uniformly decide whether to compel production. Even when production may not be required, companies should consider whether to voluntarily produce cloned discovery in full or in part, accounting for factors including time, cost, burden, bargaining position, and the size and scope of information otherwise available. When it comes to cloned discovery, companies are wise to redouble their attention to the right strategy.

¹Scricca v. Boppy Co., LLC, No. 3:22-CV-01497, 2024 WL 1211061, at *6 (D. Conn. Mar. 21, 2024); see also Cadence Educ., LLC v. Vore, No. 17-CV-2092, 2018 WL 690993, at *8 (D. Kan. Feb. 2, 2018) (denying a request to compel production of documents “relating to any lawsuits or other legal actions” involving the defendants).

²In re Outpatient Med. Ctr. Emp. Antitrust Litig., No. 21 C 305, 2023 WL 4181198, at *7 (N.D. Ill. June 26, 2023) (collecting cases).

³See, e.g., In re Broiler Chicken Antitrust Litig., No. 16 C 8637, 2020 WL 1046784, at *1 (N.D. Ill. Mar. 4, 2020); In re Sulfuric Acid Antitrust Litig., No. 1536, 2004 WL 769376, at *4 (N.D. Ill. Apr. 9, 2004).

⁴In re Air Cargo Shipping Servs. Antitrust Litig., 931 F. Supp. 2d 458, 463-64 (E.D.N.Y. 2013) (citing Douglas Oil Co. of California v. Petrol Stops Nw., 441 U.S. 211 (1979)).

⁵See, e.g., Costa v. Wright Med. Tech., Inc., No. 17-CV-12524, 2019 WL 108884, at *1 (D. Mass. Jan. 4, 2019) (collecting cases).

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.