Hit Reports – Part IV – Request for “Nonresponsiveness” Log Denied

Spivey v. BP Exploration & Production, Inc., 2024 WL 5246598 (E.D. La. Dec. 30, 2024), addressed the question of whether every document “hit” by a search term must be produced.  In Spivey, Plaintiff Spivey and American Petroleum Institute (“API”) agreed to search terms to be used by the producing non-party, API.  After the agreed search terms were run, API withheld some of the documents as non-responsive.  Spivey moved to compel production of every document with a “hit” or, alternatively, a “nonresponsiveness” log.  The motion was denied.

The case arose out of alleged exposure to harmful chemicals during the cleanup operations following the Deepwater Horizon matter.  API allegedly had information about the process.

Plaintiff Spivey served a subpoena on non-party API.  They negotiated search terms.  API produced 756 documents.  Spivey requested 200 more.

“Alternatively, Plaintiff requested that API prepare a log (akin to a privilege log) identifying all located documents not produced on the basis of nonresponsiveness.”  API refused.

THERE WAS NOT AN AGREEMENT TO PRODUCE IRRELEVANT “HITS”

First, the Spivey court rejected Mr. Spivey’s argument that all “hits” must be produced.  While Mr. Spivey asserted that the negotiated search terms defined the scope of discovery, and that they were narrowly tailored, API asserted that it need not produce nonresponsive or irrelevant documents.  The court wrote that:

Further, API argues correspondence between it and Plaintiff shows API neither agreed nor contemplated mandatory production of all search term hits; rather, API simply agreed to review hits for responsiveness and privilege.

The Spivey court, however, looked to the litigants’ agreement. See nn. 29, 30, 33.  It wrote:

Plaintiff and API did not agree to producing all documents generated by the negotiated search terms searches. Rather, the attached correspondence reflects that API repeatedly indicated that located documents would be subject to review for responsiveness before production, and Plaintiff understood same.

The Spivey court distinguished a prior case in which the parties agreed to produce all of the results of searches, except privileged documents. See nn. 31-32, 34.  It held that the Spivey “agreement to run negotiated search terms does not waive the responding party’s objections to producing nonresponsive documents.”  It explained that: “Regardless of how tailored a search term is, not every document located via electronic word search produces relevant information. API is entitled to review the ‘hits’ for relevance pursuant to Rule 26(b)(1) and timely raise objections.”

While API’s emails carried the day, they could have been clearer.  I suggested more protective terms in Hit Reports (Aug. 14, 2022); accord Does Every “Hit” on a “Hit Report” Have to be Produced? (Nov. 13, 2024);  How to Avoid Contentious “Hit Report” Problems – Part III (Nov. 15, 2023);  How to Avoid Contentious “Hit Report” Problems (Jan. 4, 2023).

Fed.R.Civ.P. 29 states that, absent a court ordering otherwise, procedures governing or limiting discovery may be modified by stipulation.  Maryland Rule 2-401(g) is in accord.

THERE IS NO BASIS FOR A “NONRESPONSIVE DOCUMENT” LOG

Second, the Spivey court also rejected the request for a log of nonresponsive documents, writing:

Plaintiff is not seeking a log of privilege documents withheld from production; rather, he seeks to require API to create a new log describing every document that API withheld on the basis of responsiveness/relevance so that he may determine whether API’s objections are justified. The Federal Rules of Civil Procedure do not require such a log. And Rule 45 simply does not require a party to create new documents to respond to a subpoena, and imposing an obligation to create a log of every irrelevant/nonresponsive document is unduly burdensome. Plaintiff’s request that API be compelled to produce a log of the documents deemed nonresponsive and withheld in response to his subpoena is denied. [emphasis added].

While that is well-reasoned, litigants need to proceed with care to ensure that they do not expand their obligations by agreements.  See Court-Ordered Production of a “Destruction/Unavailable” Log (Oct. 18, 2024).

The Spivey court’s extensive footnotes cited supporting authorities on all points.