Closing The Loop

Sometimes, you’re in a rush. But in litigation, it's not usually easy to get the information you need as quickly as you might want it. Discovery, after all, typically does not begin prior to an initial meet and confer. That can be a problem when you need to access evidence that could disappear should the case progress at a normal pace, for example, or you need to seek out data to support or resist a motion for injunctive relief early in the litigation. In such cases, expedited discovery may be available.

In federal litigation, the Federal Rules of Civil Procedure offer several opportunities to conduct discovery early in an action. Under Rule 26(d)(1), for example, a party is prohibited from seeking discovery before the parties Rule 26(f) meet and confer, unless authorized by court order. Under Rule 30(a)(2)(A)(iii), a party “must obtain leave of court… if the parties have not stipulated to the deposition and… the party seeks to take the deposition before the time specified in Rule 26(d).”

As the Rules do not mandate a single standard for how courts shall exercise their authority to order expedited discovery, courts generally apply one of two standards: a preliminary-injunction-style analysis or a “good cause” analysis.

The PI-style analysis was first set out in Notaro v. Koch, 95 F.R.D. 403 (S.D.N.Y. 1982), and is generally considered to be the more rigid standard of the two. It is also the minority approach. Under this analysis, courts look at four factors, which are, appropriately, quite similar to the factors used to determine whether a preliminary injunction is appropriate. Under this standard, courts require the moving party to demonstrate:

(1) irreparable injury,

(2) some probability of success on the merits,

(3) some connection between the expedited discovery and the avoidance of the irreparable injury, and

(4) some evidence that the injury that will result without expedited discovery looms greater than the injury that the defendant will suffer if the expedited relief is granted.

Under the more popular “good cause” analysis, sometimes referred to as a reasonableness standard, courts examine the discovery request “on the entirety of the record to date and the reasonableness of the request in light of all the surrounding circumstances.” Here, expedited discovery will be permitted where the need, “in consideration of the administration of justice, outweighs the prejudice to the responding party.” This more flexible standard has been described by one court as “more in keeping with the discretion bestowed upon the court in the Federal Rules.”

Under either test, the burden falls on the party seeking the expedited discovery. Both standards, too, require that requests for expedited discovery are narrowly tailored—expedited fishing expeditions simply aren't available.

Courts often acknowledge, no matter what standard they apply, that “expedited discovery is not the norm.” But that does not mean that expedited discovery is impossible. In JP Morgan Chase Bank, N.A. v. Reijtenbagh, 615 F.Supp.2d 278 (S.D.N.Y. 2009), for example, the court allowed expedited discovery to determine the location of paintings and sculptures worth $23 million, posted as collateral for a $50 million promissory note. That ruling resulted in the bank seizing 29 artworks from a Dutch doctor’s apartment in Trump Tower, including three Picassos, three Modiglianis, and one Monet.

In Monsanto Co v. Woods, 250 F.R.D. 411 (E.D. Mo. 2008), the court allowed expedited discovery in a dispute over whether farmers had impermissibly planted Roundup Ready soybeans. Speedy discovery, the court determined, was necessary to prevent important evidence from literally going to seed. The key factor in these cases, and in many similar decisions, was the risk that evidence would be unavailable should discovery not proceed at a heightened pace.

But some courts have also permitted expedited discovery in order to allow a case to progress. For example, in Sheridan v. Oak St. Mortgage, LLC, 244 F.R.D. 520 (E.D.Wis. 2007), the court allowed limited discovery to obtain information regarding class certification and damages, without which the plaintiff could not pursue his action. In Semitool, Inc. v. Tokyo Electron America, Inc., 208 F.R.D. 273 (N.D. Cal. 2002) the court found that expedited discovery in a patent dispute would “substantially contribute to moving this case forward and facilitating compliance with the Patent Local Rules.”

When moving for expedited discovery, the more narrowly tailored the request, the more likely it is to be granted. Such tailoring will also help reduce the burden on the producing party, thus reducing the possible prejudice to that party and increasing the chances that the court will treat the request as reasonable and permissible.

And though expedited discovery is rare, when requests are carefully crafted, such discovery can become a powerful tool in litigation where time is of the essence.

This post was authored by Casey C. Sullivan, who leads education and awareness efforts at Logikcull. You can reach him at casey.sullivan@logikcull.com or on Twitter at @caseycsull. 

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