Court Declines to Compel Production of All Documents Identified by Agreed-Upon Search Terms

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

Plaintiffs sought to compel production of all 38,000 documents hit by agreed-upon search terms.  Following review for relevance and privilege, Defendant produced only 2,214 pages “of which 274 pages consisted of copies of the complaints, with exhibits, filed in this lawsuit.” The court declined to compel the production of all search hits, but acknowledged concerns regarding Defendant’s production based on documents produced by a third party.  Accordingly, the court ordered the parties to confer regarding variations of “sampling and iterative refinement” or “a quick peek protocol” of the documents hit by search terms and also indicated willingness to consider appointment of a Special Master to conduct a review of the documents at the expense of the parties.

The parties in this case disagreed over the production of documents identified by agreed-upon search hits. Plaintiffs argued that Defendant “cherry-picked” documents for production and that the reason for agreed-upon search terms was “to avoid prolonged and detailed debate over what ESI documents are ‘responsive’ . . . .” Plaintiffs further supported their concerns regarding the completeness of Defendant’s production by noting that the production from Defendant’s third-party claims administrator was “far more comprehensive and informative.”  Defendant, in turn, argued that it had already provided “extensive discovery” and that it spent “significant resources” reviewing the documents identified by the search terms prior to production.

The court found Plaintiffs’ position “untenable,” concluding that “defendant is not obligated to turn over all 38,000 documents, after a review eliminates some on the basis of privilege.”  The court reasoned: “As every law school student and law school graduate knows, when performing a computer search on WESTLAW and/or LEXIS, not every case responsive to a search command will prove to be relevant to the legal issues for which the research was performed. Searching tens of thousands, and hundreds of thousands, of electronic documents is no different.” Recognizing “plaintiffs’ legitimate concern” regarding the production, however, the court ordered counsel to confer regarding two approaches for addressing the search hits—“sampling and iterative refinement” or a “quick peek protocol”—and indicated in footnote its willingness to consider the appointment of a Special Master to review the documents at the parties’ expense if no agreement could be reached. The court also ordered production of several documents for in camera review to determine if redactions were appropriate.

A full copy of the court’s order is available here.

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