Negotiating Searches Using “Hit” Reports

Categorical Privilege Logs: Don’t Shoot a Mouse with an Elephant Gun
March 25, 2021

Josh Gilliland’s Bow Tie Law blog published a description of search term negotiations using “hit reports” in a recent decision from the Southern District of New York.  J. Gilliland, “Precision Search Terms in Discovery” (Mar. 23, 2021).

Josh describes the back-and-forth exchange of information necessary in a cooperative approach to search. For example: “The Defendant claimed reviewing 60,000 records was unduly burdensome. Plaintiff provided a second set of search terms with proximity searches, which had 30,000 hits and 55,000 including families.”  In the end, the court ordered use of a modified version of defendant’s second proposal.

Josh wrote:

Disputes over search terms can go down a rabbit hole quickly. The parties in this case proposed search terms and proximity searches, followed by discussion over search term efficiency reports. Seeing that detail of discussion is refreshing, because it shows parties are discussing specifics. It is not a matter of one party claiming “document review is hard,” without any evidence of how many records needed to be reviewed and a time estimate.

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