*1 This matter is before the Court on Defendant BP's[1] motion for protective order precluding Plaintiff's Rule 30(b)(6) deposition notice. ECF Doc. 66. Upon consideration of the motion, Plaintiff's response, ECF Doc. 69, and BP's reply, ECF Doc. 73, the motion is GRANTED.

The gist of this discovery dispute is as follows: Plaintiff seeks to depose a BP corporate representative regarding BP's document retention and preservation policies and procedures and BP's efforts in searching for, collecting, and reviewing materials responsive to discovery requests, including, but not limited to electronically stored information maintained or created by third party consultants, CTEH and Exponent.[2] BP opposes such a request as irrelevant and overly burdensome. According to BP, this type of “discovery on discovery” should not be allowed absent something more than speculation that it has not been forthright in complying with its discovery obligations. Plaintiff, on the other hand, argues BP has not exercised good faith in responding to discovery and that a blanket protection against “discovery on discovery” is not grounded in law.

Federal Rule of Civil Procedure 26(b)(1) allows a party to “obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). In addressing proportionality, Rule 26 instructs the parties and the courts to consider “the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id. A person or party against whom discovery is sought may file a motion for protective order and the court may, upon a showing of good cause, issue such an order to protect a person or party from annoyance, embarrassment, oppression, or undue burden or expense. Fed. R. Civ. P. 26(c). As the moving party, BP has the burden of establishing good cause. See e.g., Baratta v. Homeland Housewares, LLC, 242 F.R.D. 641, 643 (S.D. Fla. 2007).

Discovery on discovery has been broadly described by courts as any discovery seeking information regarding a party's preservation, collection, and retention efforts. See Alley v. MTD Prod., Inc., 2018 WL 4689112, at *2 (W.D. Pa. Sept. 28, 2018). Its purpose is generally to challenge the sufficiency and thoroughness of the other party's production of documents and other evidence. See Lemons v. Principal Life Ins. Co., 2020 WL 9348326, at *1 (N.D. Ala. Mar. 9, 2020). Several courts have concluded that such discovery is not relevant because it does not go to the merit of the claims in the suit. See e.g., Fish v. Air Liquid Systems Corp., 2017 WL 697663, at *15 (D. Md. Feb. 21, 2017) (“the manner in which Ford maintains documents for document retention purposes is not relevant to the allegations in this case”).

*2 Other courts, including those in this circuit, have concluded such discovery may be appropriate where there is evidence of a specific deficiency in the production.[3] See Wesolek v. Wesolek, 2021 WL 7502540, at *4 (M.D. Fla. Apr. 16, 2021); see also VeroBlue Farms USA Inc. v. Wulf, 2021 WL 5176839, at *9 (N.D. Tex. Nov. 8, 2021) (“It is not the court's role to dictate how a party should search for relevant information absent a showing that the party has abdicated its responsibility,” and “[a] responding party is best situated to preserve, search, and produce its own [electronically stored information],” which “[p]rinciple ... is grounded in reason, common sense, procedural rules, and common law, and is premised on each party fulfilling its discovery obligations without direction from the court or opposing counsel[, and eschewing ‘discovery on discovery,’] unless a specific deficiency is shown in a party's production.”) (citing Moore v. Westgate Resorts, 2020 WL 113352, at *12 (E.D. Tenn. Jan. 9, 2020) (cleaned up; quoting [and adding omitted language from] The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, 19 Sedona Conf. J. 1 (2018)). Even when such discovery is allowed, the requests “should be closely scrutinized in light of the danger of extending the already costly and time-consuming discovery process ad infinitum.” Radiologix, Inc. v. Radiology and Nuclear Medicine, LLC, 2018 WL 4851609, at *4 (D. Kan. Oct. 5, 2018) (citing Mortg. Resolution Srvcng., LLC v. JPMorgan Chase Bank, N.A., 2016 WL 3906712, at *7 (S.D.N.Y. July 14, 2016)).

The requesting party can show discovery on discovery is necessary through “the documents that have been produced,” or other evidence which allows the court to make “a reasonable deduction that other documents may exist or did exist and have been destroyed” or by “point[ing] to the existence of additional responsive material.” Hubbard v. Potter, 247 F.R.D. 27, 29, 31 (D.D.C. 2008); accord Berkeley*IEOR v. Teradata Operations, Inc., 2021 WL 4306159, at *1 (N.D. Ill. Sept. 22, 2021) (collecting case law). To warrant discovery on discovery, the requesting party must “explain in sufficient factual detail [how the] document production was insufficient as a result of the methods used to preserve, collect, identify, process, or produce” documents. See Wesolek, 2021 WL 702540, at *4.

Speculation of wrongdoing not enough. Alley, 2018 WL 4689112, at *2 (“Federal courts will not compel a party to disclose its discovery process as a result of the opponent's mere suspicion that the party's process has not produced adequate documents.”) (quoting Brand Energy & Infrastructure Servs., Inc. v. Irex Corp., 2018 WL 806341, at *2 (E.D. Pa. Feb. 9, 2018)). “[D]iscovery on discovery is not permitted because of possibilities” that the producing party is hiding the ball. Procaps S.A. v. Patheon Inc., 2014 WL 11498060, at *27 (S.D. Fla. Dec. 1, 2014), report and recommendation adopted, 2014 WL 11498061 (S.D. Fla. Dec. 30, 2014); Wesolek, 2021 WL 7502540, at *4 (“Plaintiff is warned that the Court will not permit or abide a general fishing expedition through the use of unwarranted ‘discovery on discovery’ as a distraction from the merits of the litigation.”). Likewise, suspicion that additional documents exist based on the paucity of documents produced is not enough. “[T]he Federal Rules of Civil Procedure do not require perfection,” thus, the fact “that some relevant documents have fallen through the cracks,” or there was a delay in producing documents, does not make discovery on discovery more than of “dubious value.” See Freedman v. Weatherford Intern. Ltd., 2014 WL 4547039, at *3 (S.D.N.Y. Sept. 12, 2014).

*3 The Court finds Plaintiff has not shown he is entitled to discovery on discovery from BP. Plaintiff argues BP has played a “shell game” and hid the ball as to whether responsive documents were in BP's possession, custody, and control or in the possession, custody, and control of BP's third party consultants. However, despite claiming BP's conduct “calls into question the sufficiency” of BP's discovery responses, Plaintiff has not shown any documents or categories of documents are missing. While making allegations of “bad faith,” Plaintiff has not pointed to any evidence to suggest relevant files were intentionally or accidentally overlooked, destroyed or not produced. Instead, Plaintiff complains of delays in production of documents by third party consultants and delays with privilege reviews – neither of which, however, warrant Plaintiff's expansive discovery on discovery requests. The Court finds that Plaintiff has failed to make the requisite showing that BP's production has been materially deficient. See Koninklijke Philips N.V. v. Hunt Control Sys., Inc., 2014 WL 1494517, at *4 (D.N.J. Apr. 16, 2014) (granting motion for protective order on discovery on discovery).

Plaintiff's theory of the case is that “since the time of the Oil Spill in 2010, the BP Defendants have been creating an unequal playing field with respect to exposure data, testing, and documents that would be used in later litigation....”[4] ECF Doc. 69 at 5. This “theory,” however, does not show BP has withheld documents. To the contrary, BP contends it has produced over 300,000 documents and answered 400 sets of requests for production and interrogatories in these BELO matters.[5] BP has also produced six corporate witnesses. Plaintiff also argues the disputed topics of inquiry, which seeks to delve into BP's retention and preservation of emails, devices, and documents belonging to, used by, or generated by its third-party contractors are relevant because BP has objected to producing such information as being overly burdensome. Engaging in time-consuming and non-merit based discovery on discovery, however, does not effectively move the ball on resolving those objections. See Brit. Telecommunications PLC v. IAC/Interactivecorp, 2020 WL 1043974, at *7 (D. Del. Mar. 4, 2020) (“BT's complaints about Match Group's document production are not sufficiently supported to justify the kind of discovery on discovery that is proposed in the topics directed to document production.”).

Plaintiff also relies heavily on In re Takata Airbag Prods. Liability Litigation, 2017 WL 8812734 (S.D. Fla. July 5, 2017) to support its position that discovery on discovery is permissible. The undersigned, however, does not find that case to be particularly persuasive. First, the issue before the Special Master was limited to whether defendants' document retention policies were discoverable. See id., at *3 (collecting cases dealing solely with document retention policies). In In re Takata, the plaintiff claimed the retention policies were necessary “to evaluate significant gaps in Honda's document production, determine whether spoliation has occurred or documents have been withheld.” Id. at *2. Indeed, all the cases Plaintiff relies upon for the proposition that discovery on discovery is permissible in Florida have been similarly limited in scope. See e.g., Vazzo v. City of Tampa, 2018 WL 11344782, at *2 (M.D. Fla. Oct. 25, 2018) (seeking deposition on where documents produced were located, time periods covered, search terms used and custodians and including no discussion of relevance); Pinares v. United Tech. Corp., 2015 WL 11256307, at *4 (S.D. Fla. May 20, 2015) (seeking document retention policy); Pinilla v. Northwings Accessories Corp., 2007 WL 2826608, at *2 (S.D. Fla. Sept. 25, 2007) (seeking document retention policy). Second, the defendant conceded producing its document retention policies was not onerous or burdensome. See In re Takata, 2017 WL 8812734, at *6.

*4 Simply put, Plaintiff's speculation of wrongdoing and claim of a potentially incomplete production by BP's third-party contractors are not enough to justify shifting the focus of discovery away from the merits of the case. See Martin v. Allstate Ins. Co., 292 F.R.D. 361, 364 (N.D. Tex. April 4, 2013) (denying discovery on discovery because “[w]hile Plaintiff speculates that Defendant may have additional documentation that it has not produced, there is no evidence to support that supposition at this point”); 246 Sears Rd. Realty Corp. v. Exxon Mobil Corp., 2011 WL 13254283, at *4 (E.D.N.Y. Apr. 1, 2011) (denying discovery on discovery as needlessly delaying the case and where “Plaintiff fails to offer anything more than hypothetical inferences in support of its claim that defendant has engaged in the sort of misconduct that would merit discovery on discovery”); Hubbard, 247 F.R.D. at 29 (“Speculation that there is more will not suffice; if the theoretical possibility that more documents exist sufficed to justify additional discovery, discovery would never end.”). “[A] conclusory allegation premised on nefarious speculation has not moved several courts, nor will it move this one.” See Ford Motor Co. v. Edgewood Properties, Inc., 257 F.R.D. 418, 427 (D.N.J. 2009) (collecting cases).

Finally, Plaintiff argues the Court should modify Plaintiff's 30(b)(6) notice rather than grant the protective order. However, because the Court finds Plaintiff has not made the threshold showing that any discovery on discovery is warranted at this juncture in the proceedings, the Court finds the protective order should be granted. Similarly, since the Court finds good cause exists to grant the motion, the Court need not address BP's argument that the topics of inquiry invade the attorney-client or work product privileges.[6]

Accordingly, it is ORDERED:

BP's motion for protective order precluding Plaintiff's Rule 30(b)(6) deposition notice, ECF Doc. 66, is GRANTED.

DONE AND ORDERED this 29th day of November, 2022.