facebook linked in twitter youtube instagram

Nelson Mullins COVID-19 Resources

Nelson Mullins is continuing to monitor developments related to COVID-19, including guidance from the Centers for Disease Control and various federal, state, and local government authorities. The firm is taking appropriate precautionary actions and has implemented plans to ensure the continuation of all firm services to clients from both in office and remote work arrangements across our 25 offices. 

In addition, click the link below to access extensive resources to address a wide variety of topics resulting from the virus, in general and by industry,  including topics such as essential businesses, force majeure, business interruption insurance, CARES Act and FFCRA, and others. 

Nelson Mullins COVID-19 Resources

The LatestView All

May 20, 2020

Bar Foundation, Supreme Court Historical Society Feature Claude Scarborough in Podcast Series


February 3, 2020

Successfully Defend Against Discovery on Discovery Requests

By Robert L. Lindholm, Lucile H. Cohen, Jonathan Drucker

New York Law Journal

Reprinted with permission from the New York Law Journal

As e-discovery has become commonplace in litigation and attorneys have become more sophisticated on the nuances of e-discovery, “process-directed discovery” or “discovery on discovery” (also known as “meta-discovery” or “discovery about discovery”) has also become increasingly common. What is discovery on discovery? It is discovery directed at the manner and efficacy of the discovery process itself. Typically, discovery on discovery seeks information regarding the other side’s storage, collection, review, production, and preservation of documents sought in merits-directed discovery.

Courts, weary of the additional and often significant expense and lengthy delays that discovery on discovery may cause, have uniformly held that a party’s suspicion of discovery deficiencies or misconduct alone is not a sufficient basis for the court to allow litigants to go down the discovery on discovery rabbit hole. When discovery on discovery is sought, “the party seeking the discovery must provide an ‘adequate factual basis’ to justify the discovery, and the court must closely scrutinize the request ‘in light of the danger of extending the already costly and time consuming discovery process ad infinitum.’” Winfield v. City of New York, No. 15-cv-05236 (LTS) (KHP), 2018 WL 840085, at *3 (S.D.N.Y. Feb. 12, 2018). The “adequate factual basis” typically requires the requesting party demonstrate that the responding party acted in bad faith, there is evidence of spoliation, or that the responding party’s production is materially deficient. See, e.g., Hubbard v. Potter, 247 F.R.D. 27, 29 (D.D.C. 2008) (“Speculation that there is more will not suffice… courts have insisted that the documents that have been produced permit a reasonable deduction that other documents may exist or did exist and have been destroyed.”). The Sedona Conference recently recommended that “as a general matter, neither a requesting party nor the court should prescribe or detail the steps that a responding party must take to meet its discovery obligations, and there should be no discovery on discovery, absent an agreement between the parties, or specific, tangible, evidence-based indicia (versus general allegations of deficiencies or mere ‘speculation’) of a material failure by the responding party to meet its obligations.” See The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, 19 Sedona Conf. J. 1, 123 cmt. 6.b.(2018)).