Litigants frequently battle over the production of search term hits, regardless of whether the “hits” are even relevant. This is absolutely the wrong beach to die on in a lawsuit. There is the brutal reality of the costs of motion practice for the client and judicial resources spent refereeing that melee. Moreover, the ugly truth is no one should want gigabytes of irrelevant information “just cause” they want irrelevant information.
There is an old legal doctrine that is often lost in the discovery of electronically stored information: Relevancy. To borrow from Federal Rule of Evidence Rule 401, Relevant Evidence is evidence that has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” The Federal Rules of Civil Procedure temper relevancy with proportionality in discovery, taking into account the needs of the case, importance of the discovery, access to the information, and other migrating factors. See, generally Federal Rule of Civil Procedure Rule 26(b)(1).
In a case involving the DCMA, the Defendant claimed the Plaintiffs failed to produce emails that were identified by agreed-upon search terms, because Plaintiff’s counsel first reviewed the search hits to confirm they were responsive to the discovery requests, and produced what was responsive. Umg Recordings, 2018 U.S. Dist. LEXIS 164761, at *17 (W.D. Tex. Sep. 26, 2018).
The Defendants argued the Plaintiffs should not have conducted relevancy review before producing documents. The Plaintiffs countered that they never agreed to skip conducting relevancy review before producing responsive ESI. Magistrate Judge Andrew Austin stated that the Plaintiffs’ discovery workflow of reviewing emails identified by search terms was proper and denied the Defendants’ motion to compel.
Bow Tie Thoughts
Just because ESI is a “hit” to a search term does not mean it is responsive. Reviewing search hits for responsiveness is normal to do a good faith production. Courts loathe “document dumps” where a requesting party is buried in non-responsive information. Moreover, reviewing search hits to identify potentially privileged should be standard operating procedure to identify potentially privileged information and that the “hits” are actually relevant.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.