Discovery on Discovery: When to Move to Compel

“Discovery on discovery” happens when the real fight is not just what is being produced, but how the other side searched, collected, reviewed, and withheld information. Done right, targeted discovery into the discovery process can reveal gaps, prevent trial surprises, and move settlement. Done wrong, it burns budget and judicial patience.

A motion to compel is the escalation point. The question is not “Are they being difficult?” It is “Do we have a record showing the responses are deficient, the missing material matters, and we acted reasonably?”

What “discovery on discovery” usually looks like

In modern civil litigation (especially matters with meaningful ESI), disputes commonly center on:

• Unknown custodians and data sources (no clarity on whose inboxes, devices, apps, shared drives, or case management systems were searched).
• Opaque search methodology (no explanation of date ranges, search terms, filters, deduplication, threading, or whether targeted collections occurred).
• Boilerplate objections that block production (“overbroad, unduly burdensome, not proportional”) with no specifics.
• Rolling productions that never finish (promises of “supplementation” without a concrete plan).
• Privilege assertions without support (thin privilege logs, delayed logs, or categorical claims that hide entire document classes).

“Discovery on discovery” is often the only way to test whether the producing party performed a reasonable search and whether its objections match reality.

The legal frame judges tend to apply

While standards vary by jurisdiction and local rules, most courts analyze discovery disputes through familiar concepts:

• Relevance and proportionality (Federal practice often tracks Rule 26(b)(1)): the importance of the issues, amount in controversy, access to information, resources, and whether the burden outweighs the likely benefit.
• Specificity: objections should be tied to particular requests, particular burdens, and particular sources, not copied and pasted.
• Good faith process: meet-and-confer requirements are real. Many judges will not reach merits without a clear effort to resolve informally.
• Reasonableness, not perfection: “discovery on discovery” is usually justified when there is a concrete reason to doubt completeness or when the producing party’s process is itself at issue.

In other words, you win motions to compel by showing (1) the response is actually deficient, (2) the missing material is important, and (3) you behaved like the reasonable adult in the room.

When to move to compel (practical triggers)

Consider moving to compel when at least one of these is true and you can prove it with exhibits.

• Evasive “answers”: responses that do not state whether responsive materials exist, do not say what was searched, and do not say what will be produced.
• Objections with no facts: burden claims without affidavits, cost estimates, or even identification of the systems allegedly at issue.
• Inconsistent positions: a witness, initial disclosure, or produced document suggests additional sources exist that were not searched or produced.
• A broken ESI dialogue: you requested custodians, repositories, and search terms, and got stonewalled or strung along.
• Privilege used as a shield: privilege logs are missing, late, or so vague that you cannot assess the claim.
• Deadlines approaching: depositions are set, expert deadlines loom, or dispositive motion practice is coming, and the gap will materially prejudice your preparation.

A weaker basis is “they are annoying.” A stronger basis is “their process is unverifiable and the gaps change liability, causation, damages, or impeachment.”

Before you file: build the record that wins

Most motion-to-compel losses are record losses, not law losses. Your goal is to make the court’s job easy.

1) Send a focused deficiency letter

Keep it request-by-request. Quote the request, quote the response, then state exactly what is missing and what you want (supplemental production, amended interrogatory answer, a privilege log by a date, identification of custodians, etc.).

2) Offer reasonable options, not ultimatums

Courts like compromises that reduce burden while preserving truth-finding, for example:

• Narrowing date ranges or custodians.
• Starting with a “priority” repository (executive inboxes, incident channel, claims file).
• Phasing: produce high-signal sources first, then expand only if needed.
• Sampling: verify whether a contested source is likely to contain responsive material.

3) Demand “discovery about the discovery” only where it matters

If you are asking about collection steps, search terms, or repository maps, tie it to a concrete problem: missing threads, conflicting testimony, suspicious gaps, or a category of documents that should exist.

4) Paper the meet-and-confer like an exhibit list

Assume the judge will see only what you attach. Confirm conversations in writing. Track proposals, counterproposals, and missed commitments.

Here is a simple checklist you can use to decide whether you are ready to file.

Drafting the motion: be surgical

A strong motion to compel reads like a clean, provable story.

• Lead with what you asked for and why it matters (elements of claims/defenses, damages, key time periods).
• Attach the paper trail: requests, responses, deficiency letters, and meet-and-confer correspondence.
• Separate disputes: courts respond better to three clear issues than twelve blended grievances.
• Propose a workable order: deadlines, scope, and, if appropriate, a protocol (custodians, date ranges, search terms, privilege log timing).
• Be careful with sanctions and fees: request them where the behavior supports it, but do not make the motion sound punitive unless the record truly is.

Don’t ignore the leverage and the risk

A motion to compel can create leverage for settlement, especially when it forces clarity on:

• What documents exist.
• What the other side will not search.
• Whether key witnesses are exposed to impeachment from newly produced materials.

But it also has risks: the court may narrow your requests, deny fees, or view both sides as escalating unnecessarily. That is why “discovery on discovery” should be targeted, tied to concrete case value, and supported by a clean meet-and-confer record.

Making “discovery on discovery” faster (and less painful)

Two operational practices help more than most lawyers admit:

First, treat discovery disputes like project management. Track each request, each deficiency, the commitment made, and the deadline promised. When you later draft your motion, you are assembling a timeline, not recreating one.

Second, use tooling to validate what you are seeing. In cases involving web applications, portals, or API-driven exports, capturing what the system actually returns can be useful when the dispute is about completeness or access. For technical validation, a local-first tool like DevTools for recording browser traffic into executable API flows can help teams reproduce requests consistently and document behavior.

Once productions arrive, platforms like TrialBase AI can help litigation teams turn documents into usable work product (summaries, outlines, and demand-ready materials) quickly, so the time spent compelling discovery translates into real case progress.

The decision rule

Move to compel when you can show (with exhibits) that the other side’s response is deficient, the missing information materially affects the case, and you have already offered proportional compromises in good faith.

That is the difference between “discovery drama” and a court order that actually changes the trajectory of the litigation.