How to Avoid Contentious “Hit Report” Problems – Part III

More on “Modern Attachments,” “Pointers,” or Hyperlinked Documents – Humpty Dumpty and “Usability”
November 13, 2023
Maryland’s Proposed Rule 5-702
November 15, 2023

Josh Gilliland’s Bow Tie law blog has often addressed the question of: “What happens when one party argues a producing party should produce all search term hits?”  His answer is “no,” production is not required until after review and culling.  See How to Avoid Contentious “Hit Report” Problems, and Hit Reports, citing, inter alia, Josh’s blog, Search Term Agreements Do Not Eliminate Relevancy Review – Bow Tie Law.

Doug Austin has blogged on this issue.  Court Declines to Compel Microsoft to Produce All ESI Retrieved from Search Terms ( 25, 2021). Doug cited a decision holding: ““This Court similarly holds 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.”

In Josh’s most recent blog, Tales of Late Productions and Remedies – Bow Tie Law (Nov. 14, 2023), he wrote about a decision in which “[t]he Court addressed the Plaintiffs’ argument that the Defendants should have produced any ESI that was a hit to a search term without conducting any additional review. The Court never made such an order.”  Josh cited In re Telescopes Antitrust Litig., 2022 U.S.Dist.LEXIS 150470, at *11-12. (N.D. Cal. Aug. 22, 2022).

The Telescopes Antitrust Litig, court wrote:

DPPs suggest in their briefing that a Court order requires Defendants to produce all documents that hit on a court-ordered search term and prohibits Defendants from using any criteria or methods to cull documents from review without first disclosing those criteria or methods to Plaintiffs in advance.… DPPs are mistaken. The Court has never ordered that a party must not review ESI for responsiveness after applying search terms; rather, the Court has suggested that a party may choose to expedite its production by relying only on search terms and a privilege screen….   Moreover, Defendants explained at the hearing that they applied additional search terms, not to cull documents from production, but to identify within their collection of potentially responsive documents those that required a manual review, so as to avoid inadvertently producing non-responsive documents that included privileged material or private and sensitive information that was not responsive to any of Plaintiffs’ document requests….  No order prohibits such review.

In re Telescopes Antitrust Litig., 2022 WL 3590342, at *4 (N.D. Cal. Aug. 22, 2022)(emphasis added).

In How to Avoid Contentious “Hit Report” Problems, I provided suggested language to avoid the entire problem. In my view, a solid and cooperative ESI plan can avoid problems.  In my Hit Reports blog, I suggested the following language in any agreement:

In the spirit of cooperation and to further the goal of proportionality, we agree to run one or, within reason, more “hit reports” for you.  The purpose is to permit you to focus your subsequent requests.  We will use [name of litigation review software] and run the terms against electronically stored information in the [name database].

Please note that a “hit” may be beyond the scope of discovery, irrelevant, privileged, work product, non-responsive, a trade secret, confidential, proprietary, etc., and all rights are reserved to object to the production of any or all “hits.” This includes without limitation the right to assert that any or all production is not proportional to the needs of this case.  Further, all rights are reserved as to any and all other objections under the Maryland Rules [or Federal Rules of Civil Procedure], including the right to move for a protective order for any reason permitted under the Rules. All objections to any discovery request are incorporated herein, and none are waived by the hit report. No privilege is waived by production of a hit report because the hit report is not an offer to produce any document. Additionally, the right to mark a “hit” as confidential or highly confidential under the agreed protocol or protective order is fully reserved. Further, we reserve the right to add additional data to, or remove data from, the database and that may vary the number of hits.  All rights are reserved, including without limitation, rights under Fed.R.Evid. 502.

Thanks again to Josh for highlighting this issue.