Please Produce All Documents Produced in Prior Litigation

Has the opposing party been sued before in a semi-similar fact pattern?  Are you salivating at the prospect of sending a request for production seeking all discovery from that prior case?  It is not as easy as sending a request for production for all documentation produced in prior litigation.

Racing Optics v. Aevoe Corp. was a patent infringement case.[1]  Plaintiff sent defendant two requests for production seeking every document the defendant produced in prior litigation about the patent.  Defendant objected.  The court ruled “these requests were impermissible ‘piggyback’ discovery, and that Racing Optics needed to specify which documents it wanted and to demonstrate its relevance.”

Rule 26(b)(1) makes information discoverable if it is “relevant to any party’s claim or defense and proportional to the needs of the case”  The fact that Aevoe “produced certain documents in the [other] cases does not necessarily make them discoverable in this case.”  “The fact that documents will ‘shed light on specific issues’ does not automatically render those documents discoverable.”  “Taken together, Racing Optics’s 14 document requests appear to seek every document produced or generated in the Aevoe v. AE Tech Litigation. This court is hard pressed to imagine a document or category of documents that would not be subject to one or more of Racing Optics’s discovery request.”  “Racing Optics has also not explained why it cannot get the information it seeks through discovery in this action, rather than through Aevoe’s discovery responses in a previous action.”

This is not an isolated decision. Chen v. Ampco Sys. Parking was a wage and hour case engaging in pre-class action certification discovery.[2]  The plaintiff sent four requests for production.

Document Request No. 2 asks Defendant to produce all statements and declarations that relate or refer to the state cases.
Document Request No. 5 asks Defendant to produce all documents related to communications regarding the state cases
Document Request No. 6 asks Defendant to produce all discovery produced by Ampco in the state cases, including written discovery responses, documents and deposition transcripts.
Document Request No. 7 asks Defendant to produce all discovery that Ampco received in the state cases, including the same document types as in Doc. Req. No. 6.

The court refused to compel a response.  The “fact that Ampco produced certain documents in the state cases does not necessarily make them discoverable in this case.”  Instead, the plaintiff “must specifically ask for the documents he wants and be able to demonstrate that the information he seeks is relevant to his claims in this case.”

Wollam v. Wright Med. Group, Inc. was a medical device case where the court described the discovery as “cloned” or “piggyback.”[3]  It sought

all “documents and things produced,” “transcripts of each, any, and all depositions,” “all reports by experts by any party,” and “all other discovery responses served by any defendant” in the following:

[A]ny action from January 1, 2001, to the present, in any state or federal court in the United States, or in a foreign court or tribunal, where it was claimed or alleged that an artificial hip designed, manufactured, or distributed by a Wright entity failed in such a way that the component known as the “modular neck” corroded, fretted, or fractured, regardless of whether that exact language was used.

The question in the motion to compel was “whether discovery taken in other, unrelated, and as yet unidentified cases, pending worldwide and over the last decade, is relevant to the claims of these plaintiffs.”  It wasn’t.  “[A] party seeking discovery ordinarily must ‘do their own work and request the information they seek directly’ and ‘must make proper requests describing the information in which they are interested.”[4]  Request for production seeking specific information “allow a court to consider the relevance of the information sought to the specific claims and defenses in the pending case.”  This contrasts with a piggyback request.  “Discovery is intended to be liberal, but it is not unbounded. The sweeping cloned discovery sought by the plaintiffs has not been shown to be sufficiently relevant to the claims and defenses in this case and simply reaches too far.”

Other courts reached similar conclusions.  Moore v. Morgan Stanley & Co., Inc., 07 C 5606, 2008 U.S. Dist. LEXIS 88300, 2008 WL 4681942 (N.D. Ill. May 30, 2008)(“A party’s requested discovery must be tied to the particular claims at issue in the case” and that “just because the information was produced in another lawsuit … does not mean that it should be produced in this lawsuit”); Oklahoma v. Tyson Foods, Inc., 05-CV-329, 2006 U.S. Dist. LEXIS 72769, 2006 WL 2862216 (N.D. Okla. 2006)(denying motion to compel production of documents made available “in a similar poultry waste pollution lawsuit previously brought in this Court” absent a showing of more than “surface similarities” between the cases); Midwest Gas Services Inc. v. Indiana Gas Co., Inc., No. IP 99-690, 2000 U.S. Dist. LEXIS 8098, 2000 WL 760700 (S.D. Ind. March 7, 2000)(in a private antitrust action, refusing to compel production of documents provided to the United States in response to a civil investigation demand absent a showing of relevance); Payne v. Howard, 75 F.R.D. 465, 469 (D. D.C. 1977)(stating that “[w]hether pleadings in one suit are ‘reasonably calculated’ to lead to admissible evidence in another suit is far from clear” and that such a determination requires consideration of “the nature of the claims, the time when the critical events in each case took place, and the precise involvement of the parties, among other considerations”).

[1] 2:15-cv-1774, 2016 U.S. Dist. LEXIS 98776 (D. Nev. July 28, 2016).
[2] 08-cv-0422, 2009 U.S. Dist. LEXIS 71633 , 2009 WL 2496729 (S.D. Cal. August 14, 2009).
[3] 10-cv-03104, 2011 U.S. Dist. LEXIS 56649 *; 2011 WL 1899774 (D. Col. May 18, 2011).
[4] (quoting Midwest Gas Services Inc. v. Indiana Gas Co., Inc., No. IP 99-690, 2000 U.S. Dist. LEXIS 8098, 2000 WL 760700 (S.D. Ind. March 7, 2000)).