Aggressive plaintiffs sometimes try to generate a “side show” by challenging corporate defendants’ discovery responses (usually their document productions). Although federal courts have thankfully moved in the direction of assessing discovery requests’ proportionality, corporate defendants must still worry about an opponent’s contentious approach.

In Cynosure, LLC v. Reveal Lasers LLC, No. 22-cv-11176-PBS, 2024 U.S. Dist. LEXIS 67959, at *11 (D. Mass. Apr. 15, 2024), plaintiffs challenged defendants’ “efforts to comply with their discovery obligations.” The court ordered defendants to provide detailed information about the email accounts that they had searched; whether they had “extract[ed] all of the data” from one individual’s cell phone; the exact search terms they had used (surprisingly and perhaps erroneously holding that “[s]earch terms are not protected as attorney work product”). Id. at *10-11.

Courts taking the logical and presumably appropriate approach allow such “discovery about discovery” only if the litigant seeking such discovery has made out a prima facie case of defendant’s discovery misconduct. The worst scenario for corporate defendants is in lawsuits brought by individual plaintiffs, who have no fear of some reciprocal discovery.