Searches terms are the beginning of collecting and identifying electronically stored information. Far from perfect, search terms are the kickoff for document review. Yes, email threading, deduplication, clustering, predictive coding, and other forms of technology-assisted review enable lawyers to not plow through ESI like it is a football stadium full of paper, but you have to start somewhere. Search terms often is that starting point.
What happens when one party argues a producing party should produce all search term hits? The answer is no. Moreover, wishing to get all hits is a formula for madness.
Consider the case of O’Donnell/Salvatori Inc. v. Microsoft Corp. 339 F.R.D. 275 (W.D.Wash. 2021). The Plaintiffs created original music and audio content for video games. Microsoft hired the Plaintiff as an independent contractor to create the musical themes for the Halo video games. A dispute eventually followed over the royalties for the Halo soundtrack.
The parties entered a stipulation over identifying responsive ESI with search terms, with the assistance from the Court. Document review followed with four rolling productions. The producing party deemed emails regarding employees leaving the team, technical issues, or buying a boat as not relevant to any of the claims or defenses in the lawsuit.
The Plaintiff claimed the Defendant had to produce all search hits and was NOT permitted to conduct a relevancy review before producing responsive ESI.
The Court rejected this argument like many Halo fans rejected the TV show. Citing to precedent, “an agreement to run search terms does not waive the producing party’s right to object based on relevance nor acquiesce to produce all resulting documents.” O’Donnell/Salvatori Inc., at 277, citing FlowRider Surf, Ltd v. Pacific Surf Designs, Inc., 2016 U.S. Dist. LEXIS 153563, at *8 (S.D. Cal. Nov. 3, 2016). Moreover, a search term agreement is “a way to simplify and limit the scope of production, but it did not obligate the parties to produce non-responsive documents,” Id, summarizing BancPass, Inc. v. Highway Toll Admin., LLC, 2016 U.S. Dist. LEXIS 96978, 2016 WL 4031417, at *3 (W.D. Tex. 2016).
The Court held 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.” O’Donnell/Salvatori Inc., at 277. The Court found the production was done in a reasonably timely manner, with a shout out to document review attorneys whose job is to conduct document review.
Bow Tie Thoughts
Let’s get this out of the way: I liked the Halo TV show. Many of my friends who are gamers love the video game. Many have shown their love for the game by building costumes, such as the armor for the cosplayer in this post, built by my good friend Shawn at Thorsson & Associates. The soundtrack is also haunting beautiful, so litigation over royalties is not a surprise.
The idea of producing hits to every search term can drive up the cost of document review for the requesting party with false positive results. That is when a search term appears in ESI, but has nothing to do with the lawsuit. Imagine if one of the search terms was “game.” Microsoft has more than one video game on the market. Such hits would include an insane amount of irrelevant information. Perhaps if the term “game” was in proximity to “Halo” by 10 characters then maybe there is an argument, but then it still could include emails about someone buying a boat that is irrelevant.
Agreeing to search terms does not eliminate a party’s right to review for relevancy and privilege. Moreover, other technology-assisted review can be used to help expedite review. Sadly, no eDiscovery AI is like Cortana, but she would make document review far more efficient.