[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
In Rouse v. H.B. Fuller Co., 2024 WL 4973028 (D. Minn. Dec. 4, 2024), plaintiff moved to compel production sought in his Request No. 159, which asked for: “All Documents and Communications responsive to or collected by the ESI Protocol from April 1, 2023 to present. (Emphasis added).” The court described the request as “rolling discovery.”
You may guess the result from the following statement by the court: “This is not the first time the Court has admonished the parties for seeking second and third bites at discovery cherries in this case…. The parties are not being deterred from trying to obtain discovery that has been judicially found to be irrelevant or disproportionate by the Court’s responses to this behavior to date. Since the Court’s actions so far have apparently been too tepid, the Court will resort to sterner tools going forward.”
The Rouse case involved claims against a company that manufactures and sells industrial adhesives, sealants, and other specialty materials. Rouse v. H.B., 2024 WL 4528872, at *1 (D. Minn. Oct. 18, 2024). Consumers challenged the quality of one of the products and asserted various claims that I will pigeon-hole as consumer protection actions. Id. It was brought as an asserted class action. Rouse v. H.B. Fuller Co., 694 F. Supp. 3d 1149 (D. Minn. 2023).
The Rouse court wrote that it “must first describe what it has decided to this point because the majority of the discovery requests at issue in this motion are seriously out of compliance with the Court’s earlier rulings.”
The court had made two prior rulings. First, it had held that the temporal scope of discovery ended on April 1, 2023, with the exception of “specific, focused requests.” Second, the court had prohibited “rolling discovery,” “no matter how a request for it is framed.”
On August 21 the Court ordered the parties not to seek discovery after April 1, 2023, unless it was focused. RFP 159 takes as its starting date April 1, 2023 and asks for all responsive documents since that date.
Rouse v. H.B. Fuller Co., 2024 WL 4973028, at *3 (D. Minn. Dec. 4, 2024).
The Rouse court wrote that none of the requests were “’focused’ in any meaningful sense of that word.” Further, the plaintiff was requesting “rolling discovery”:
There could not be a more paradigmatic example of the “rolling discovery” the Court forbade in August than RFP 159. It seeks “[a]ll Documents and Communications responsive to or collected by the ESI Protocol from April 1, 2023 to present.” On August 21 the Court ordered the parties not to seek discovery after April 1, 2023, unless it was focused. RFP 159 takes as its starting date April 1, 2023 and asks for all responsive documents since that date.
Id. at *3.
The court swept aside a justification offered by the plaintiff:
On November 4, Plaintiffs tried to defend RFP 159 and the other clearly violative RFPs by positing a distinction between a new RFP and supplementation of a previous RFP. Plaintiffs claimed that they understood only the latter to be “rolling production” (because it updates an existing RFP) while a new RFP, by definition, is not an update (because there is nothing to be updated), and so is not rolling production.
Id.
The Rouse court responded that “the effort to distinguish existing RFPs from new RFPs is not tenable. Even if an update to an old RFP can be distinguished from a wholly new RFP, there is no difference in the documents whose disclosure Plaintiffs sought, and it is the documents sought, not the discovery technique used to do the seeking, that matters.”
The court added that discovery that is irrelevant or disproportional does not become relevant and proportional because it is sought “in a new RFP rather than a supplementation to an old RFP.”
Plaintiff’s motion to compel a response to RPD No. 159 was denied. The court also denied several other requests and granted some others in part.
“Rolling production” is a standard practice. A party preserves, collects, searches, and produces documents in batches, after reviewing each batch for privilege and responsiveness.
“Rolling discovery” differs. In “rolling discovery,” the discovering party requests that the producing party continue its collection, review, and production as an ongoing process to capture newly-created documents.
Fed.R.Civ.P. 26 requires supplementation of discovery responses:
e) Supplementing Disclosures and Responses.
(1) In General. A party who has made a disclosure under Rule 26(a)–or who has responded to an interrogatory, request for production, or request for admission–must supplement or correct its disclosure or response:
(A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or
(B) as ordered by the court.
Fed.R.Civ.P. 26.
The 2007 Advisory Committee Note states:
Rule 26(e) stated the duty to supplement or correct a disclosure or discovery response “to include information thereafter acquired.” This apparent limit is not reflected in practice; parties recognize the duty to supplement or correct by providing information that was not originally provided although it was available at the time of the initial disclosure or response. These words are deleted to reflect the actual meaning of the present rule
Committee Notes on Rules, 2007 Amendment.
However, “Rule 26 does not mandate when the duty to supplement ends.” Watson v. City of Henderson, 2024 WL 1514983, at *7 (D. Nev. Apr. 5, 2024). The Watson court added:
[C]ourts have found that the duty to supplement is only triggered if a party’s prior production is incorrect or incomplete. The duty to supplement under Rule 26(e)(1) is directed to documents generated during the relevant time frame previously not produced but subsequently discovered. To say that the duty to supplement covers documents generated after that date would render meaningless any delineated time period for production … Nothing in [Fed.R.Civ.P. 26(e)(1)] imposes a never ending obligation to produce documents continuously as they are created ….”
Id. (emphasis added; cleaned up).
The Watson court added that the duty to supplement does not automatically supersede the discovery cutoff date. Id.
The stated concern with “rolling discovery” is that permitting endless supplementation “would be to invite rolling discovery in a way that would unfairly burden [Defendant] and indefinitely postpone trial” Id. (emphasis added; citation omitted).
The duty to supplement is not a never-ending obligation to produce documents as they are created. Our Children’s Earth v. Leland Stanford Junior Univ., 2015 WL 12964638, at *3 (N.D. Cal. Oct. 29, 2015). However, the Our Children’s Earth court held that “fundamental fairness” compelled a “meet and confer” by the parties to see if “for equitable reasons” information should be produced.
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