3.1 Million Documents Totaling 2,547.6 GB With Costs Exceeding $3.7M is Too Much

Alison L. MacDonald sued her employers alleging discrimination on various grounds.  The parties negotiated a partial resolution of disputes, but: “Defendants conditioned their supplemental response as to several of the requests on the parties agreeing to custodians of Electronically Stored Information (‘ESI’) and a set of search terms that Defendants would run in order to collect potentially responsive ESI.”  MacDonald v. Hasbro Managerial Svcs., LLC, 2026 WL 1759175 (D.R.I. Jun. 18, 2026).

After some back-and-forth negotiations, “Defendants notified Ms. MacDonald that the agreed-upon search terms would not be workable because they hit on approximately 3.1 million documents totaling 2,547.6 gigabytes of data…. Defendants indicated that processing and hosting that data would cost $620,000 and attorney review costs would exceed $3.1 million.”

Defendants proposed another conference of the parties. “Ms. MacDonald refused.” After Defendants made a small production, Ms. MacDonald moved to strike their objections, compel responses, and for sanctions.

After addressing some preliminary issues, the court wrote:

The crux of the parties’ disagreement as to many of the discovery requests hinges not on the relevance of the documents sought but rather on the burden of locating responsive ESI. The parties have engaged in a needlessly ineffective and prolonged debate over search terms without first identifying the concrete universe of potentially responsive information. A list of terms that returns over 3 million potentially responsive documents is unworkable for both parties in terms of time and expense. A better approach would have been for the parties to first agree to custodial and non-custodial sources of documents, establishing a total universe of ESI. Defendants’ eDiscovery vendor then could have run every list of proposed search terms against the entire universe of documents in order to identify where terms were overbroad and unlikely to result in responsive information. The parties could then negotiate over connectors and other Boolean terms in order to further narrow the results. Utilizing these so-called “search term hit reports” would create full transparency into the resulting universe of potentially responsive documents and thus allow the parties to establish a list of search terms that would be workable for both sides. All of this could have occurred before the parties utilized the Court’s time and resources to have two discovery dispute conferences at which they purportedly agreed to a list of search terms despite not having even a basic understanding of how many documents those search terms would return. [emphasis added].

After addressing proportionality, the court added: “The burden and expense required for Defendants to review over 3 million documents are not proportional to the needs of this case, to say nothing of how significantly such an undertaking would delay the case. It has already been nearly a year since discovery began. The Court is left with no choice but to order the parties to reconvene their negotiations over search terms and strongly urges the parties to utilize search term hit reports to make those discussions more efficient and effective.”

The court called for a “mutually agreeable ESI protocol,” and wrote that “[t]he parties have already agreed to custodians and are now ordered to agree to a list of mutually agreeable search terms—that hit on a workable number of documents for both parties….”  It added: “If the parties are unable to agree, they may request an informal discovery conference with the Court. If a conference is needed, Defendants should be prepared to provide specific data supporting which search terms are overbroad.”

In similar situations, some courts have directed that parties either record or transcribe their meeting. If agreement is not reached, the court may review that record:

• “Meet and Confer” Was Transcribed (Dec. 1, 2025);
• Felder: Part 1 of 4:  Court-Ordered Transcription of “Meet and Confer” Session (Aug. 13, 2024)(Court orders for recording of “meet and confer” sessions has a long pedigree, going back to at least 2008. My first recollection of hearing about such an order came from a presentation by the late Hon. David J. Waxse);
• But cf. How Not to Negotiate an ESI Protocol? Say it is “Mandatory”; and, Demand That Discussions be Recorded (Mar. 26, 2025).