[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
In Rouse v. H.B. Fuller Co., 2025 WL 573278 (D. Minn. Feb. 21, 2025), the court wrote:
The parties negotiated an ESI Protocol that, in relevant part, required Defendants to collect documents from fifty custodians and produce documents and family members that produced a “hit” on agreed-upon search terms. Pursuant to the ESI Protocol, Defendants produced voluminous ESI that was generated between January 2016 and April 2023 (and, in the case of certain custodians, September 2023). [Emphasis added].
Rouse v. H.B. Fuller Co., 2025 WL 573278 (D. Minn. Feb. 21, 2025).
The tort claims included one for fraudulent concealment. The discovery disputes presented in Rouse did not involve that part of the ESI Protocol. Instead, they centered on date ranges and the scope of corporate designee testimony.
I do not know the factual specifics of the Rouse case. I am assuming that privilege review was permitted. And, that provision may have been a proportional risk in light of the needs of the case, the nature of the claim, the search terms presented, the resources of the producing party, and the identities and roles of the fifty custodians.
However, I would be a bit concerned about agreeing to produce every “hit” for every search term, plus family members, from fifty custodians.
Michael Berman, E-Discovery LLC.
In Spivey v. BP Exploration & Production, Inc., 2024 WL 5246598 (E.D. La. Dec. 30, 2024), the court reviewed an ESI agreement and distinguished a prior case in which the parties agreed to produce all of the results of searches, except privileged documents.
It held that the Spivey “agreement to run negotiated search terms does not waive the responding party’s objections to producing nonresponsive documents.” It explained that: “Regardless of how tailored a search term is, not every document located via electronic word search produces relevant information. API is entitled to review the ‘hits’ for relevance pursuant to Rule 26(b)(1) and timely raise objections.”
Hit Reports – Part IV – Request for “Nonresponsiveness” Log Denied (Jan. 2, 2025).
In Singleton v. Mazhari, 2024 WL 1140691, at *3 (D. Md. Mar. 14, 2024)(Abelson, J.), the Court followed the well-reasoned rule that “the Court notes that hits on a given search term in a given document for a particular custodian, including during the time frames above, does not necessarily mean the document is discoverable.” See Does Every “Hit” on a “Hit Report” Have to be Produced? (Nov. 13, 2024).
“[A] party’s agreement to run search terms does not waive its right to review the resulting documents for relevance so long as the review can be done in a reasonably timely manner.” Of course, privilege review is also permitted. Id.; see How to Avoid Contentious “Hit Report” Problems – Part III (Nov. 15, 2023); Doug Austin, Court Declines to Compel Microsoft to Produce All ESI Retrieved from Search Terms (Oct. 25, 2021).
There is nothing new about this issue. In BancPass, Inc. v. Highway Toll Admin., LLC, 2016 WL 4031417, at *3 (W.D. Tex. July 26, 2016), the court rejected the argument that an agreement to generate a hit report was also an agreement that prevents relevance review.
HTA… produced only those documents that it determined were relevant to the case and withheld the rest. BancPass argues that this is a violation of the agreement…. BancPass argues that an agreement by the parties to run search terms and produce all non-privileged results prevents a producing party from later attempting to withhold documents based on relevance…. If the Court were to construe the parties’ email correspondence on this topic to constitute a contract, it is likely that HTA’s actions would amount to a breach. The Court’s reading of the e-mail chain is that the parties agreed to produce all of the results of the searches save privileged documents. But the parties’ e-mail exchange is not a contract. Rather, it was a means to simplify and limit the scope of production responsive to BancPass’s requests for production 6, 11, 29, 38, 39, and 45.
BancPass, Inc. v. Highway Toll Admin., LLC, 2016 WL 4031417, at *3 (W.D. Tex. July 26, 2016).
However, there are conflicting authorities that preclude responsiveness review. See Hit Reports (Aug. 14, 2022).
I suggest that the better view is that, under the precise rubric of the procedural rules, discovery is limited to relevant information. Irrelevant “hits” are not discoverable.
That said, the most prudent course is to negotiate a clear agreement permitting responsiveness and privilege review.
You may think this is clear to the other side; but, don’t count on it. Likewise, don’t assume the Court shares your interpretation of the protocol. Just settling upon an agreed-upon list of queries may not be sufficient to insure a meeting of the minds.
Craig Ball, Federal Court Rules on Whether Documents Containing Agreed-Upon Keywords are Responsive Per Se | Ball in your Court (Oct. 25, 2021).
I have suggested protective language for an ESI Protocol. How to Avoid Contentious “Hit Report” Problems (Jan. 4, 2023). That is an inexpensive ounce of prevention.
Assisted by GAI and LLM Technologies per EDRM GAI and LLM Policy.
