There are very few absolutes in e-discovery. In most situations, parties’ actions are judged against a standard of reasonableness under the circumstances. In this case, the court abided by that philosophy, ruling that an agreement upon a set of search terms doesn’t mean that all data responsive to that search is by definition relevant, and therefore must be produced.
In this music royalties dispute, the plaintiffs motioned to compel the defendant to produce all data retrieved from searches for responsive data.
During discovery, the parties entered an ESI order that said the parties would use search terms to identify and collect relevant data. Through multiple negotiations, the parties finally agreed on the exact set of search terms to use. When the defendant used these search terms, the defendant found that some documents produced were not relevant to the case, and therefore did not disclose them.
As a result, the plaintiffs requested the defendant to produce all data that was withheld, stating that the defendant was not entitled to run a relevancy review before production.
• Rejected plaintiffs’ motion to compel production. The judge rejected the motion stating, “While there is little case law on this issue, the courts that have addressed it have almost uniformly found that a relevance review, and the withholding of irrelevant documents, is appropriate.”
• Running of search terms isn’t a waiver of relevancy review. As long as the relevancy review could be conducted within “a reasonably timely manner,” an agreement to use search terms doesn’t waive the producing party’s right to a relevancy review.
• Three cases cited to back up the judge’s ruling. 1) FlowRider Surf, Ltd v. Pacific Surf Designs, Inc., 2) BancPass, Inc. v. Highway Toll Admin., LLC, and 3) Palmer v. Cognizant Tech. Sols. Corp. all stated the same rule: that a relevancy review is permitted when producing documents from a set of search terms.
Download the PDF version of this case law alert here.
Search terms are a way to search for and find documents that may be relevant. But because of false positives, not every keyword hit is a responsive document. The Court got it 100% right. One practice tip to avoid this sort of dispute in the future is: make it clear in the ESI protocol that you can review the documents the search terms hit on for both privilege and relevance/responsiveness.