Search terms agreements do not require production of all retrieved documents

NewHavenCourthouse(sm)On January 13, 2016, the District of Connecticut declined to compel production of all ESI documents resulting from agreed search terms.

Here the parties’ counsel had agreed to a list of search terms which resulted in approximately 38,000 documents but Defendant did not produce them all, produced only 2,214 pages.

Plaintiff objected that Defendant was omitting “highly relevant” material and that they had agreed on search terms “to avoid prolonged and detailed debate over what ESI documents are ‘responsive…”. Defendant positioned that it provided all relevant documents after reviewing the result of the search term process.

The Court held that Defendant cannot be “obligated to turn over all 38,000 documents” and that a search can result in tens of thousand of electronic documents and many may be irrelevant, just as it happens with WESTLAW and/or LEXIS searches.  “[N]ot every case responsive to a search command will prove to be relevant to the legal issues for which the research was performed”.

However,  the Court recognized Plaintiff’s “legitimate concern” regarding the lack of production and ordered counsel to confer on two possible approaches for addressing the search hits (“sampling and iterative refinement” or “quick peek protocol”). In the absence of any agreement, the Court will consider the appointment of a Special Master to review the 38,000 documents at parties’ expense.

Gardner v. Continental Cas. Co., 3:13 CV 1918 (JBA), 2016 WL 155002 (D. Conn. Jan. 1, 2016)   Open PDF

For more information, Francesca Giannoni-Crystal

 

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