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

“Hit Reports,” also called “search term reports” or “keyword reports,” are commonly accepted. However, United Farm Workers v. Noem, 2026 WL 1045469 (E.D. Cal. Apr. 17, 2026), stated an exception for facially overbroad search terms.

The starting point was the court’s observation that: “Although it is abundantly clear from the parties’ filings that they have attempted to cooperate to ensure proposed discovery is consistent with the principles of relevance and proportionality, despite months’ of effort, they have resolved relatively few of their disagreements about the appropriate nature and scope of discovery in this action.”

Numerous discovery disputes were presented in this apparently massive case. They included whether discovery was limited to the forum District, the relevant time period, the relevant sources, and proportionality.

This post focuses on “hit reports.” The court explained the opposing positions:

Because the parties have clung to materially divergent positions on the appropriate nature and scope of discovery, they not surprisingly have been unable to reach consensus on protocols to govern discovery of ESI, including the breadth of proposed search terms and the related subject of hit reports, as well as the scope of custodians to be searched.

Whereas Plaintiffs argue the Court should compel Defendants to comply with the “expected and customary” practice of providing hit reports for their requested but disputed search terms/strings…, Defendants argue they should not be compelled to provide hit reports for Plaintiffs’ facially overbroad proposed search terms….

Id. at *6 (emphasis added). 

The United Farm Workers court rejected a bright-line right to “hit reports,” writing that: “Contrary to Plaintiffs’ characterization of a purported ‘expected and customary’ practice, there is no one-size-fits-all approach to managing the discovery of ESI.” Id. at *6. 

The United Farm Workers court recognized the value of “hit reports,” writing: “In many circumstances, providing early hit reports can assist the parties narrow disputed search terms.” Id. at *6.

However, the United Farm Workers court quoted another decision limiting the right to “hit reports.” That other court wrote:

[T]he Court is concerned that requiring Respondents to run twenty search terms across four custodial files, and then review and produce responsive documents, will be unduly burdensome. Further meet and confer efforts are necessary for the parties to identify appropriately narrow search terms. To facilitate this, Respondents shall provide hit reports listing the number of documents across the four custodians that hit on Harbour’s fourteen proposed search terms.

Id. (emphasis added).

The United Farm Workers court also cited precedent stating:

However, where the disputed search terms are facially overbroad, a requesting party has no entitlement to early hit reports…. The court agrees that the search terms and date range are overbroad and will result in an unduly burdensome number of irrelevant hits.

Id. at *6 (emphasis added). 

It then reasoned:

Consistent with the discussion above concerning proportionality, the undersigned agrees with another court’s observation that search terms “do not define proportionality. … Rather, proportionality must be assessed by considering the specific context of the custodian and/or repository against which the search terms will be applied.” … Applying that principle here, while some of Plaintiffs’ proposed search terms and strings are facially overbroad, other search terms and strings, if applied across a narrow universe of custodians most likely to possess relevant information, can more reasonably be expected to return results that are proportional to the needs of the case, consistent with Rule 26(b).

Id. at *6.

The United Farm Workers court then applied these principles:

Defendants already have run narrow search term queries across 22 custodians largely associated with USBP’s El Centro Sector (including Defendant Bovino)…. As a starting point, to facilitate continued meet/confer efforts between the parties to reach consensus on ESI discovery, the Court will order Defendants to conduct a further ESI search and collection run and produce hit reports for these 22 custodians using, in addition to Defendants’ agreed search terms, Plaintiff’s proposed search terms Nos. 1, 6, and 12…. Although Defendants assert that various limitations of their e-discovery platforms would make any overbroad ESI search requirement overly burdensome, including a significant adverse system limitation that would be triggered if any collection project exceeds 5-terabytes, nothing in the supporting declaration of U.S. Customs and Border Protection eDiscovery Team Lead… leads the Court to assess that the search and hit report requirement it orders herein will exceed that 5-terabyte threshold. [emphasis added].

I find United Farm Workers a bit confusing. If the concern was additional collection and production, I understand it.

However, in my experience, “hit reports” are never burdensome because collection is a separate discussion and “hit reports” do not require production of anything. “Hit reports” are easy to generate. Hit Reports (Aug. 14, 2022).

Absent an Agreement in ESI Protocol to Produce All “Hits,” Without Review, (Mar. 4, 2025), which I suggest is almost universally imprudent, it is not necessary to produce all documents that are on a “hit report.” See:

• Hit Reports (Aug. 14, 2022);
• Does Every “Hit” on a “Hit Report” Have to be Produced? (Nov. 13, 2024);
• Hit Reports – Part IV – Request for “Nonresponsiveness” Log Denied (Jan. 2, 2025);
• 8 Lessons Learned – Part II – “Hit” Report Provision of ESI Protocol (May 7, 2024);
• How to Avoid Contentious “Hit Report” Problems – Part III (Nov. 15, 2023).

In fact, “hit reports” may have greater value when there is an assertion that search terms are too broad. One court wrote that “any objection to a proposed search term as overbroad or disproportionate must be accompanied by a hit report so that the other party—and the Court—can assess the burden. Making such an objection without the hit report invites disputes and Court intervention, which an ESI Protocol is designed to avoid.” What is the Purpose of an ESI Protocol? Court Addresses Seven Key Issues (Nov. 29, 2025).

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