[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
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.”
Singleton quoted a Western District of Washington decision that: “[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.
. . . 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.
Singleton v. Mazhari, 2024 WL 1140691, at *3 (D. Md. Mar. 14, 2024)(Abelson, J.).
The “production-of-all v. review-for-relevance” treatment of hit reports has long been an area of discussion. In Hit Reports, I cited to a 2013 post by Craig Ball on this issue, a 2016 post from McGuireWoods LLP, and a 2016 post by Josh Gilliland.
What is a “hit report” a/k/a “search term report”? In Hit Reports, I wrote that the term “covers a lot of ground.” It includes reports run for an opposing litigant, as part of a cooperative process to refine search requests; and, reports run for internal analysis. Here, the former is at issue and, in the Hit Reports blog, I reproduced a sample hit report.
While most courts addressing the “hit report” question permit relevance review before production, the Hit Reports blog noted that some do not. The majority rule is based on the principle that all discovery is limited by concepts of relevance and proportionality, and that no litigant should be compelled to produce an irrelevant document merely because it “hit” on a keyword. Id. In short, the scope of discovery limits what must be produced.
The Singleton Court named relevant custodians, set relevant time frames, and explained:
That then leaves the question of which search terms TEDCO should run against the universe of documents collected from the provided custodians for those time periods. As discussed at the hearing, TEDCO (or its vendor) should run search term reports (“STRs”) for the search terms Plaintiff requests. Surely, certain terms will hit on volumes of documents that will be unduly burdensome and disproportionate to the needs of the case. Accordingly, Plaintiff and TEDCO shall engage in meaningful and concrete conferral, such as modifying search terms, narrowing time frames with respect to particular search terms, applying particular search terms only to particular custodians, and the like—a process that is necessarily iterative as narrower STRs are generated, until the set of documents to review reaches a reasonable volume, proportionate to the needs of the case. See generally Jason R. Baron & Edward C. Wolfe, A Nutshell on Negotiating E-Discovery Search Protocols, 11 Sedona Conf. J. 229 (2010). The Court is confident that Plaintiff and TEDCO will reach agreement on such protocol, consistent with the Fourth Circuit’s instructions in Jordan and the proportionality principle reflected in Rule 26. [emphasis added].
In Singleton v. Mazhari, 2024 WL 1140691, at *3 (D. Md. Mar. 14, 2024)(Abelson, J.).
I would add that, just as search terms may hit on burdensome documents, they will likely hit on non-responsive and privileged ones.
I think it is prudent to include specific provisions in a search protocol agreement, pre-empting the “production-of-all v. right-to-review” question. In Hit Reports, I suggested protective language for a hit report agreement.[1]
Just as “hits” may be overinclusive, they may also be underinclusive.
I think it is prudent to include specific provisions in a search protocol agreement, pre-empting the “production-of-all v. right-to-review” question. In Hit Reports, I suggested protective language for a hit report agreement.[1]
Michael Berman, E-Discovery LLC.
For example, with text messages, producing only a “hit” may be insufficient. Be Careful What You Agree To, But the Duty to Cooperate May Provide an Escape Hatch (Part II) (Nov. 11, 2022). Depending on the definition of document, producing only a “hit” may omit critically significant context.
Additionally, it may be important to address the issue of producing known relevant documents that do not result in a “hit.” Is There a Duty to “’Fess Up?” – Part II (Nov. 12, 2022). One court has stated that “an ESI protocol and search terms work in tandem with the parties’ obligations under the Federal Rules and do not replace a party’s independent obligation to produce electronic (or paper) documents that are reasonably accessible, relevant, and responsive within the meaning of Rule 34.”
Despite shortcomings, and even with increasing availability of GenAI and TAR, “hit reports” remain a frequently-used tool. “[I]t is universally acknowledged that keyword searches are useful tools for search and retrieval of ESI….” Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 256 (D. Md. 2008). For example, in Wolfclan v. Pierce Cnty., 2024 WL 4449931, at *4 (W.D. Wash. Oct. 9, 2024), a litigant was ordered to “run the search terms against identified data sources and produce a hit report.” To the same effect, in Microvention, Inc. v. Balt USA, LLC, 2023 WL 4317195, at *4 (C.D. Cal. June 13, 2023), the court ordered that hit reports be provided and that the parties meet and confer to discuss them.
However, “[h]it reports, by themselves, are of limited value…. They do not speak to whether the hits are relevant, but merely show how many documents hit on a particular word.” E-Discovery Update: Producing Search-Term Hit Reports: Another Form of Discovery on Discovery – McGuireWoods (July 8, 2016).
A “hit report” should be a tool that provides the basis for further refinement of a search that will be requested in the future:
Accordingly, as discussed, the parties shall meet and confer and endeavor to reach agreement regarding a protocol for identifying whether additional documents exist that are responsive to the [civil investigative demand] requests. This will include good faith and meaningful conferral regarding search terms and other aspects of a review protocol. This should include exchanges of search terms and custodians, and potentially information regarding the volume of documents that “hit” on particular search terms, so as to permit concrete and meaningful compromise with respect to searches that “hit” on volumes of documents the review burden for which may be disproportionate to the potential relevance of documents responsive to particular requests.
United States v. Carahsoft Tech. Corp., 2024 WL 811490, at *2 (D. Md. Feb. 27, 2024)(emphasis added).
Singleton makes it clear that a “hit report” is a beginning, not an end. Nevertheless, it may be prudent for parties to reach an express agreement in a Fed.R.Civ.P. 26(f) conference.[2]
Notes
[1] For additional information related to these issues, see How to Avoid Contentious “Hit Report” Problems (Jan. 4, 2023); How to Avoid Contentious “Hit Report” Problems – Part III (Nov. 15, 2023); cf. 8 Lessons Learned – Part II – “Hit” Report Provision of ESI Protocol (May 7, 2024)(asserting that “hits” are not presumptively responsive, non-privileged documents and that the producing party has a right to review the “hits” before production); Keyword Hits + Overbroad Terms ≠ Duty to Produce (Sep. 9, 2024); eDiscovery Assistant’s 2022 eDiscovery Case Law Year in Review Report (Mar. 16, 2023)(citing decision); The ESI Protocol: Your Word is Your Bond… Or, Is It (Jan. 11, 2024)(poorly focused search generated 63,382,929 hits); Application of Phil Favro & Judge Peck’s Lessons on Search Design (Oct. 5, 2024)(resolving dispute over high hit counts); cf. In re Soc. Media Adolescent Addiction/Pers. Inj. Prod. Liab. Litig., 2024 WL 1786293, at *4 (N.D. Cal. Feb. 20, 2024)(ESI Protocol language for hit reports).
[2] This blog addresses the March 14, 2024, decision in Singleton. A subsequent decision in Singleton is the subject of a separate blog. Privilege Objections Denied Without Prejudice (Nov. 11, 2024).
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