[EDRM Editor’s Note: The opinions and positions are those of the Michael D. Berman.]

In Sussman Sales Co., Inc. v. VWR International, LLC, 2026 WL 2056582 (S.D.N.Y. Jul. 15, 2026), the court made two holdings that I question.

Clearly the court is privy to information I do not have and may have explained its reasoning in greater depth elsewhere. For example, the opinion opens by stating: “For the reasons discussed during today’s discovery conference, the parties’ current discovery disputes are resolved as specified below.”

ORDER THAT EVERY “HIT” MUST BE PRODUCED, UNLESS PRIVILEGED

First, the court ordered plaintiff Sussman to run defendant VWR’s two disputed search strings across all of its custodians:

Documents from October 1, 2018 to the present: Whiteboard AND NOT (*@whiteboardadvisors.com OR “whiteboard advisors” OR Edmentum OR “Paul Joy” OR “GSV’s News” OR “@morningbrew.com” OR “Carr (meeting rooms)”)

Documents from January 1, 2015 to the present: (Dwayne OR Dwayne’s) OR dwaynej*

It then ordered that “Sussman must produce the (i) hit reports for the searches specified above and (ii) all of the documents that hit on the search terms, except those (if any) withheld for privilege.” Id. at *1 (emphasis in original).

The court added: “For avoidance of doubt: Sussman may not withhold documents hit on by the two modified search strings set forth above based on a responsiveness review.” Id. (emphasis added).

It may be that the court had sufficient information to determine responsiveness based on the detailed search string. 

But I support the general rule that the fact that a document “hits” on a search term or string does not mean that it is responsive. And, Fed.R.Civ.P. 26(b) limits the scope of discovery to information related to claims and defenses. Non-responsive information fails to meet that standard.

For additional authorities, please see:

• Does Every “Hit” on a “Hit Report” Have to be Produced? (Nov. 13, 2024);
• How to Avoid Contentious “Hit Report” Problems – Part III (Nov. 15, 2023);
• How to Avoid Contentious “Hit Report” Problems (Jan. 4, 2023);
• Hit Reports (Aug. 14, 2022).

Best practice would be for the parties to cooperate and agree in advance. Craig Ball posted Federal Court Rules on Whether Documents Containing Agreed-Upon Keywords are Responsive Per Se | Ball in your Court (Oct, 25, 2021). He wrote:

If you enter into an agreement with the other side to use keywords and queries for search, be clear about expectations with respect to the disposition of items hit by queries. Assuming the items aren’t privileged, are they deemed responsive because they met the criteria used for search or is the producing party permitted or obliged to further cull for responsiveness based on the operative Requests for Production? 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.

I suggested model language in Hit Reports:

In the spirit of cooperation and to further the goal of proportionality, we agree to run one or, within reason, more “hit reports” for you. The purpose is to permit you to focus your subsequent requests. We will use [name of litigation review software] and run the terms against electronically stored information in the [name database].

Please note that a “hit” may be beyond the scope of discovery, irrelevant, privileged, work product, non-responsive, a trade secret, confidential, proprietary, etc., and all rights are reserved to object to the production of any or all “hits.” This includes without limitation the right to assert that any or all production is not proportional to the needs of this case. Further, all rights are reserved as to any and all other objections under the Maryland Rules [or Federal Rules of Civil Procedure], including the right to move for a protective order for any reason permitted under the Rules. All objections to any discovery request are incorporated herein, and none are waived by the hit report. No privilege is waived by production of a hit report because the hit report is not an offer to produce any document. Additionally, the right to mark a “hit” as confidential or highly confidential under the agreed protocol or protective order is fully reserved. Further, we reserve the right to add additional data to, or remove data from, the database and that may vary the number of hits. All rights are reserved, including without limitation, rights under Fed.R.Evid. 502.

It may be that, in Sussman, the detailed search string minimized the risk of production of non-responsive documents; however, the scope of the order on its face appears to go beyond the scope of discovery by ordering production of non-responsive ESI. For example, the second search string covers all Sussman custodians from 2015 to 2026.

WAS IT ERROR FOR SUSSMAN TO PRODUCE MANY DOCUMENTS THAT DID NOT CONTAIN AGREED-UPON SEARCH TERMS?

Second, Sussman said that it ran the agreed-upon search terms and produced approximately 800 pages. However, “VWR states that the June 28 production cannot be what Sussman claims it to be, because many if not all of those 800 documents do not contain any of the agreed-upon search terms.” Id. at *1 (emphasis added). 

The court added that “Sussman has done little or nothing to verify the content of its production (or supplement it if necessary)….” It ordered that Sussman “consult with its discovery vendor as to what search terms were actually run in connection with its June 28, 2026 production” and “if necessary, run the correct searches, using the agreed-upon terms….”

The parties agreement is silent on whether the documents produced were parent-child documents. If they were, it is not uncommon that a search term “hits” in one parent or child, but production of the parent-child email results in production of one or more documents that do not contain the search term.

I agree that explanation may not provide Sussman with a “safe harbor” here because “many if not all” of the produced documents did not contain the keywords. And, the court noted a lack of quality control by Sussman, i.e., “has done little or nothing to verify the content.” But a little more information would be helpful.

There are some other factors that may have contributed to the court’s decision. Sussman’s production was tardy. For example: “The Court notes that this information was due by May 14, 2026, and Sussman is now more than two months late.” And, as to other information: “The Court notes that this information was due by March 6, 2026, and Sussman is now more than four months late.” It may be that it was time for the curtain to fall.

Assisted by GAI and LLM Technologies per EDRM’s GAI and LLM Policy.