[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
This is a follow up to 4 Things You Never Wanted to Hear + 8 Lessons & a Dispute Over Revealing Recipients of Litigation Hold Notices, All in One Case (May 4, 2024), discussing In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 1786293 (N.D. Cal. Feb. 20, 2024), and 2024 WL 1808607 (N.D. Cal. Apr. 25, 2024).
The Social Media Addiction court resolved a dispute over – – and entered an order governing – – “hit” reports as part of a court-ordered ESI Protocol. 2024 WL 1786293 at *4-5.
It is important to ask for hits on “unique” documents when requesting that an opponent generate a hit report. The process should be iterative, not “one and done.” Frequently, several successive hit reports are necessary. Consideration of how family members will be reported may be important to discuss.
Michael Berman.
The plaintiffs’ proposed language was:
In the event that a Producing Party claims burden with respect to modified and/or additional search terms proposed by the Requesting Party, the Producing Party will provide a hit report for the terms at issue using industry-standard processing tools, such as NUIX or other similar tools. The Producing Defendant will provide a hit report for each custodian or data source in the deduplicated document collection where the terms were applied, including the following with respect to each proposed or modified search term in the collection: a) The number of documents with hits for that term; b) The number of unique documents, i.e., documents which do not have hits for any other term; c) The number of family members, including the documents with hits, of the documents with hits for that term; and d) The number of unique family members of the documents with hits for that term. The hit report will also include the total number of documents in the de-duplicated collection against which the search terms were applied, the total number of unique documents containing hits, and the total number of unique family members, including the documents with hits, of the documents with hits. It is understood that the unique hit numbers would be document collection specific, as non-U.S. custodial data will not be comingled with U.S. data for deduplication. The Parties will meet and confer to resolve disagreements over the search terms or their application. [emphasis added].
In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 1786293 (N.D. Cal. Feb. 20, 2024), and 2024 WL 1808607 (N.D. Cal. Apr. 25, 2024).
Defendants’ proposal was:
If the Producing Party uses search terms to identify, search, or cull potentially responsive ESI, the Producing Party shall disclose the search terms to the Requesting Party. The Parties shall meet and confer regarding any disputes over the disclosed search terms. In the event that a Producing Party claims burden with respect to modified and/or additional search terms proposed by the Requesting Party, the Producing Party will provide a hit report for the terms at issue using industry-standard processing tools such as NUIX or other similar tools. Hit reports are not predictive of richness, prevalence or responsiveness. A Producing Party need not provide a hit report for any term or set of terms that on its/their face is not reasonably and proportionately tailored to identify information responsive to a particular Request (e.g. entire company name, product and/or service name, a custodian’s own name, or similar term). A Producing Party need only provide two rounds of hit reports to a Requesting Party. To the extent the Parties are unable to reach agreement on the application of, or procedures for, any search or filtering processes, the Parties shall raise such issues for resolution by the Court. Nothing in this ESI Order may be construed or interpreted as precluding a Producing Party from performing a review to determine if documents captured by search terms are in fact responsive to the Requesting Party’s discovery requests. Similarly, nothing in this ESI Order may be construed or interpreted as precluding a Producing Party from performing, by any means, a privilege review of documents determined to be responsive. Further, nothing in this ESI Order requires or may be relied on by a Party to compel the production of documents captured by any search term that are not responsive to the Requesting Party’s request, privileged, or otherwise protected from disclosure. [emphasis added].
In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 1786293 (N.D. Cal. Feb. 20, 2024), and 2024 WL 1808607 (N.D. Cal. Apr. 25, 2024).
The court explained:
The Court finds that Plaintiffs’ proposed language provides more definite guidance on what is to be expected in hit reports as compared to Defendants’ holistic approach. Further, at the [court conference], Plaintiffs clarified that their term “unique hit” is unrelated to deduplication and instead refers to “the particular documents that that search term that’s at issue will hit as opposed to other search terms that may be are agreed upon. And so it isolates how many unique documents would be lost if you remove that search term from the collection.” … With that clarification, Defendants’ counsel agreed that Defendants’ concerns about implicating deduplication here were allayed. [emphasis added].
As to numbers of “family members” and “unique family members,” Defendants indicated at the [court conference] that their ESI tools should generally be able to provide such numbers without undue burden, but the specifics of each Defendant’s ESI tool may differ. As the Court directed, if there remain good faith disputes after a Requesting Party reviews a hit report, the Parties shall meet and confer to resolve such disputes, including discussing disclosure of numbers of family members and/or unique family members by the Producing Party in a further hit report if that Producing Party’s ESI tool is capable of providing such numbers.
In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 1786293 (N.D. Cal. Feb. 20, 2024), and 2024 WL 1808607 (N.D. Cal. Apr. 25, 2024).
The court then ordered that the following be incorporated into the ESI Protocol:
If a Producing Party uses search terms to identify, search, or cull potentially responsive ESI, the Producing Party shall disclose the search terms to the Requesting Party. The Parties shall meet and confer regarding any disputes over the disclosed search terms. In the event that a Producing Party claims burden with respect to modified and/or additional search terms proposed by a Requesting Party, the Producing Party shall provide a hit report for the terms at issue using industry-standard processing tools, such as NUIX or other similar tools. The Producing Party shall provide a hit report for the document collection where the terms were applied, including the following with respect to each proposed or modified search term in the collection:
a) The number of documents with hits for that term; and
b) The number of unique documents, i.e., documents which do not have hits for any other term.
If, after reviewing a hit report from a Producing Party, a Requesting Party so chooses, it may reasonably request a further hit report which includes:
c) The number of family members, including the documents with hits, of the documents with hits for that term; and
d) The number of unique family members of the documents with hits for that term.
If the ESI tool for the Producing Party is capable without undue burden of providing the number of family members and unique family members, then the Producing Party shall provide such further hit report. The Parties (including the person most knowledgeable about the capabilities of the Producing Party’s ESI tool and the Requesting Party’s person most knowledgeable about technical issues from its ESI service provider) shall meet and confer regarding any disputes over whether the Producing Party’s ESI tool has the capability or not to provider either number of family members or number of unique family members.
The Parties shall meet and confer to resolve disagreements over the search terms or their application. To the extent the Parties are unable to reach agreement on the application of, or procedures for, any search or filtering processes, the Parties shall fully comply with the provisions of this Court’s Discovery Standing Order regarding the procedure for raising discovery disputes with the Court, including the meet and confer and certification requirements therein. [emphasis added].
In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 1786293 (N.D. Cal. Feb. 20, 2024), and 2024 WL 1808607 (N.D. Cal. Apr. 25, 2024).
This is a massive and complex case. While every ESI Protocol should be tailored to the specific case, proportional to its needs, and consider the types of ESI and review platforms in use, several general principles seem clear. It is important to ask for hits on “unique” documents when requesting that an opponent generate a hit report. The process should be iterative, not “one and done.” Frequently, several successive hit reports are necessary. Consideration of how family members will be reported may be important to discuss. Further, “hits” are not presumptively responsive, non-privileged documents. The producing party has a right to review before production.
For more on “hit” reports, please visit How to Avoid Contentious “Hit Report” Problems – Part III (Nov.15, 2023), Hit Reports (Aug. 14, 2022), and Judicial Interpretation of an ESI Protocol (Mar. 13, 2023)(“The instant issue arose when the parties disagreed as to whether they were required to manually review these documents (i.e., the documents captured by the search terms) for relevance prior to production, or whether [McCormick] could produce those documents without a document-by-document review.”).
