Navigating Clone Discovery in the United States: Understanding Relevance, Proportionality and Particularity, and the Latest Judicial Guidance

Discovery under the Federal Rules of Civil Procedure (FRCP) is a foundational element of litigation in the US. The process is governed primarily by Rules 26–37 of the FRCP, which establish a framework to assist parties in obtaining documents and information to support their claims and defences before trial.

Requests for “clone discovery” or the reproduction of voluminous documents from a prior case for use in a new case are being met with opposition under the 2015 amendments to FRCP Rule 26. Recent judicial guidance clarifies the limiting principles of the amended Rule 26(b) with regard to clone discovery.

The key principles of discovery under the FRCP include relevance, proportionality and particularity. Rule 26(b), as amended in 2015, defines the scope of discovery, allowing parties to obtain information regarding any non-privileged matter that is relevant to their claims or defences and proportional to the needs of the case. When evaluating proportionality, factors to consider include:

The limiting principles of the 2015 amendments to Rule 26(b) took further form in the deletion of language that used to allow discovery of information even if it was not admissible at trial but was “reasonably calculated to lead to the discovery of admissible evidence”.

Rule 34(b)(1)(A), meanwhile, requires that requests for production (RFP) describe each item or category with reasonable particularity. Lawyers must also certify, among other things, that the RFPs are neither unreasonable nor unduly burdensome or expensive, taking into account any prior discovery in the case, the amount in controversy and the importance of issues at stake in the action (Rule 26(g)).

As a general rule, “asking for all documents produced in another matter is not generally proper” (TravelPass Grp., LLC v. Caesars Ent. Corp., No. 18-CV-153, 2020 WL 698538, at *6 – E.D. Tex. Jan. 16, 2020). In TravelPass, the court ruled that a request for “wholesale duplicates of discovery produced in other litigation” merely due to “overlap between the issues” is improper, as it fails to satisfy the relevance requirement.

Similarly, in In re Volkswagen “Clean Diesel” Mktg., Sales Pracs., & Prods. Liab. Litig., No. MDL 2672, 2017 WL 4680242, at *1-2 (N.D. Cal. Oct. 18, 2017), the court determined that opt-out plaintiffs in a shareholder litigation “are not entitled to complete access to the [multidistrict litigation] [p]roduction simply because there may be an overlap between their claims and those in the consolidated consumer class action” and “[t]hey instead must serve requests for production … in accordance with the [FRCP]”.

Nevertheless, courts may compel the production of documents from a prior case if the cases are “substantially similar”. For example, in Costa v. Wright Med. Tech., Inc., No. 17-CV-12524-ADB, 2019 WL 108884, at *2 (D. Mass. Jan. 4, 2019), the court ordered the production of certain clone discovery in a product liability case involving the same product, made with the same material, and involving the same type of product failure. However, the court denied requests to produce other clone discovery from cases involving a similar product, made with different materials, and involving a different type of product failure. The court concluded that cloned discovery from those cases would lead to “the production of information with little or no relevance to this case”.

Courts may also require the production of targeted documents produced in prior, similar proceedings, as requests for specific documents are less objectionable than typical clone discovery. In Food Lion, LLC v. Dairy Farmers of America., Inc., No. 20-CV-442, 2020 WL 6947921, at *4–5 (M.D.N.C. Sept. 29, 2020), the court compelled the production of 32 documents from a prior antitrust case, including expert reports, responses to interrogatories and requests for admissions, and summary judgment materials. However, the scope was limited to documents that were relevant to the alleged anti-competitive conduct at issue that formed the basis of their case.

In a recent court decision in United States v Anthem, Inc., No. 20CV2593ALCKHP, 2024 WL 1116276, at *3-5 (S.D.N.Y. Mar. 13, 2024), the court tried to balance the burdens and advantages of reproducing data from a prior case. In Anthem, the government sued a health insurer, Anthem Inc., under the False Claims Act, claiming that Anthem’s allegedly fraudulent practices resulted in overpayments by the government. During discovery, Anthem requested clone discovery from a prior case involving similar claims against one of Anthem’s competitors (the Poehling case). The government first reproduced a subset of documents, including deposition transcripts and exhibits. Thereafter, Anthem moved to compel additional clone discovery.

In addressing Anthem’s motion, the court adopted a “middle approach” that “minimizes the burdens on both parties and capitalizes on the work already done by the parties in Poehling” (2024 WL 1116276, at *4). The court narrowed the request for the remaining 2.2 million documents by:

The Anthem case demonstrates that, while clone discovery can simplify discovery, it also presents challenges. Parties seeking or opposing clone discovery should consider the following.

Accordingly, parties should adopt a nuanced, case-by-case approach to clone discovery. This involves assessing the specific needs of the case, the relevance of the requested documents and the potential burden on the producing party.