How to Avoid Contentious “Hit Report” Problems

Josh Gilliland’s blog, Search Term Agreements Do Not Eliminate Relevancy Review – Bow Tie Law (Jan. 2, 2023), addresses:

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.

Josh writes that, in O’Donnell/Salvatori Inc. v. Microsoft Corp. 339 F.R.D. 275 (W.D.Wash. 2021), “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….”

The O’Donnell court held that “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.”  Instead, “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….’”

Josh correctly concludes: “Agreeing to search terms does not eliminate a party’s right to review for relevancy and privilege.”  Josh had previously blogged on this topic in Responsive to Search Terms Does NOT Mean Relevant – Bow Tie Law (Aug. 16, 2016).

I wrote on this topic, and also addressed O’Donnell, in Hit Reports (Aug. 14, 2022).  I cited, among others, Craig Ball’s blog that this issue remains “contentious,” and I described an article from JDSupra that suggested there may be an assumption that hits will be produced.

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.