Miscommunication about Search Terms Leads to Defendants’ Refusal to Produce Thousands of Documents, Court Declines to Compel Production without Showing of Some Benefit to Plaintiff

Ross v. Abercrombie & Fitch Co., 2008 WL 4758678 (S.D. Ohio Oct. 27, 2008)

In this securities case, the parties reached agreement that discovery was best accomplished by allowing Abercrombie to perform keyword searches to identify relevant information for production.  Plaintiff identified and provided the key words to the defendant.

The first key words list contained 120 terms.  After efforts to ensure the search would be productive, including converting certain files to a different format, Abercrombie ran the search. There were many hits.  To reduce the volume, plaintiffs crafted a revised list of 123 terms.  Another search was run and when the results came in, the parties agreed that some data sets from among the results would be reviewed and produced.  Abercrombie produced those documents.  The parties also agreed that further refinements of the search would be necessary to cut down the remaining results.  Accordingly, plaintiff’s counsel sent 6 additional terms to Abercrombie to be run in proximity to other specified terms. 

At “some point” the parties realized that they were operating under different assumptions regarding the searching.  Abercrombie ran the last search using only the 6 new terms provided.  However, plaintiff had intended the 6 new terms to be added to the previously provided 123 terms, not for them to be run separately.  The parties agreed to run another search using both lists which “hit” almost 100,000 documents, or what Abercrombie estimated as equating to approximately 1.3 million pages.  Plaintiff requested all the documents captured by the search hits, and indicated a willingness to return any privileged documents in the event Abercrombie chose to produce them without review to reduce costs.  Abercrombie was unwilling to produce the documents without review, and was unwilling to spend the time or money necessary to review the documents itself, arguing that most were irrelevant to the issues in the case.

Plaintiff argued that if Abercrombie had performed the search properly in the first place, the documents would have been produced and that it would be unfair to allow Abercrombie to withhold documents because of its mistake.  Abercrombie argued, essentially, that the volume was too great and the likelihood of irrelevance too high to justify requiring review and production and that regardless of any misunderstanding, it would have resisted reviewing and producing the documents at any time for those reasons.

The court agreed with Abercrombie stating, “[a]t some point, given the large amount of time and money which has been spent so far on document production, it becomes the plaintiff’s burden to show that the cost to review and produce even more documents is outweighed by their likely relevance to the case.”  The court also noted that Abercrombie had already reviewed and produced a “very large number of documents” and that it would take “a lot more” time and money to review the documents in dispute.  Accordingly, the court declined to compel production without “some showing that the plaintiff is likely to get at least a moderate benefit from that process.”

Reluctant to bar the plaintiff from the requested information altogether, the court outlined the possibility that the search terms could be revised and run against a sampling of documents to determine whether the revisions resulted in “hits” to more relevant information.  If they did, the court opined, it “would be reasonable” for the plaintiff to ask for the search to be run on the documents at issue in the case and for the parties to discuss how they might economically review that subset of documents.  “In the meantime,” the court noted that there were a number of persons who could be deposed based on the existing documents produced and stated that if documents turned up later that might prompt additional questioning of those witnesses, “the parties ought to be able to agree on a way to get that done without incurring significant additional expense.”

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