Duplicative Discovery Not Objectionable Unless 'Fully' Duplicative
Litigators often have the tendency to seek similar, if not identical, information from multiple sources. As an opponent has an interest in withholding harmful information, third-party discovery may be critical to proving a claim or defense. In Hamilton Partners v. Highland Capital Management, C.A. No. 6547-VCN (Del. Ch. Feb. 2, 2016), the plaintiff appeared to take the approach of seeking similar information from both the defendant and relevant third parties. The defendant challenged this practice by opposing the plaintiff's motions for commissions and third request for production of documents as, among other things, duplicative, cumulative and oppressive. According to the defendant, because the plaintiff's discovery sought "largely the same information from each non-party and the third request and the motions [sought] information already sought in the first and second requests, the plaintiff's discovery effort has become unnecessarily cumulative and 'oppressive.'" The Delaware Court of Chancery disagreed, finding that, because the requests were not fully duplicative, they were not objectionable.
The court began its analysis by citing the standard in Court of Chancery Rule 26(b) that the court shall limit discovery that is "'unreasonably cumulative or duplicative.'" The court further found, however, that, under relevant precedent, "objections to discovery on this basis are usually denied ... unless 'the discovery request is fully duplicative and meant to harass the producing party.'" In concluding that the plaintiff's discovery was not duplicative or oppressive, the court noted two important considerations. First, the court found that the plaintiff "reasonably" could expect that different individuals will produce different documents responsive to the same requests. The court believed that such a "reality" defeated any fear of "fulsome overlap." Second, the issuance of the same requests to different individuals "might allow the plaintiff 'to test the truth, accuracy and completeness' of extant and forthcoming production." Third, the court found there was no indication in the record that the plaintiff's discovery was oppressive and noted that none of the relevant third parties had objected on that basis.
Specifically with respect to the third request, the court acknowledged that some of the requests "can be read as asking for the same sorts of documents already sought in the first and second requests." The court also noted that some requests in the third requests "appear more likely to generate duplicative discovery than others." In fashioning appropriate relief, the court looked to offer a comprehensive solution that balanced "the risk of overlap with the plaintiff's important discovery right." To address these competing concerns, the court ordered the defendant to produce documents responsive to the third request to the extent they were not produced in response to one of the plaintiff's earlier document requests.
Under the court's ruling in Hamilton Partners, litigators who seek relevant information from multiple sources can breathe a sigh of relief. The court recognized that different parties or third parties may produce different documents, and the production by one individual can be used to test the completeness of the production by another. This real-world approach to discovery should assist practitioners in obtaining as much relevant information as possible to develop a complete record in support of their claims and defenses.