Given how often parties use search terms, you'd think we would see precedent on them more often. But opinions about the use of search terms for document production only come out occasionally. It may be that many of these disputes are resolved on teleconferences, where the generally escape the notice of anyone who is not on that case.
Anyway, this week the Court unsealed a new opinion regarding document production and the use of search terms.
In Orca Security Ltd. v. Wiz., Inc., C.A. No. 23-758-JLH-SRF (D. Del.), the parties agreed in an ESI stipulation that they would search using search terms. The searched terms resulted in about 110,000 unique hits in the defendants documents—but it produced only about 25,000 documents. It argued the remainder were non-responsive to the plaintiff's discovery requests.
The plaintiff moved to compel production of the remaining 85,000 documents. The Court granted the motion, relying primarily on the fact that the defendant is withholding so many documents that hit the search terms:
The ESI Order provides that "the parties will have substantially completed production of all non-privileged custodial ESI responsive to the parties' Priority Requests, subject to any unresolved objections[,]" by August 30, 2024. (D.1. 71 at 6; D.I. 106) Even if the court were to construe this provision broadly to support Defendant's position that documents hitting on search terms can be withheld based on relevance,' relevance is broadly construed in the context of discovery. . . . The fact that Defendant is withholding more than seventy-five percent of the documents hitting on the parties' agreed-upon search terms amounts to "specific, compelling evidence suggesting that [Defendant] is withholding responsive ESI material." Doe 1 v. Baylor Univ., 2018 WL 11471253, at *2 (W.D. Tex. May 6, 2018).
. . . Plaintiff explains that search terms combining "orca* AND" with keywords deemed to be relevant to the issues in the case resulted in about 35,000 unique documents across custodians, but Defendant's production includes less than 3,000 documents for that keyword combination. . . . These documents are facially relevant, satisfying Plaintiff's initial burden to establish the relevance of the requested information. . . . Defendant offers no argument or examples supporting its position that documents hitting on these agreed-upon search terms are not responsive.
Orca Security Ltd. v. Wiz., Inc., C.A. No. 23-758-JLH-SRF, D.I. 182 (D. Del. Oct. 22, 2024).
It's interesting that the Court focused primarily on the relevance of the documents to the issues in the case, rather than whether the documents were responsive to plaintiff's discovery requests. The scope of the plaintiff's requests was not discussed in the decision—possibly because the defendant did not provide sufficient examples of non-responsive documents, or enough argument to really get into how 85,000 of it's 110,000 search term hits could be non-responsive.
The Court distinguished prior cases that had denied similar motions to compel. One case involved a party who produced 50% of the search term hits, but there (unlike in this case) the party offered an explanation:
In Palmer v. Cognizant Technology Solutions Corporation, the court declined to compel production of all non-privileged documents returned by running the parties' search terms where the defendants produced over fifty percent of the documents hitting on search terms. 2021 WL 3145982, at *7-9 (C.D. Cal. July 9, 2021). Specifically, the court determined that the defendants had offered reasonable and persuasive explanations for the number of documents produced. . . . Here, in contrast, Defendant has produced less than twenty-five percent of documents hitting on search terms and has offered no explanation for those statistics beyond the conclusory argument that the balance of documents are unresponsive.
Id. at 5-6.
The Court also distinguished a District of Delaware case where the parties had agreed to use search terms only to locate "potentially responsive" e-mails, not all emails:
In CMC Materials, LLC v. Dupont De Nemours, Inc., Judge Williams entered an oral order denying the plaintiff's request to compel the defendant to turn over all search-term identified documents. C.A. No. 20-378-GBW, D.I. 191 (D. Del. Oct. 11, 2023). The court's decision in CMC Materials was based on evidence that the parties "agreed to use search terms to 'locate potentially responsive emails' and not, as [the plaintiff] contends, to turn over all results." (D.I. 157, Ex. A) The "potentially responsive" language at issue in CMC Materials is not present in the parties' ESI Order in this case.
Id. at 5.
My main takeaway from this last paragraph (distinguishing CMC Materials) is that parties should be extra careful to include the "potentially responsive" language, or similar, in their agreements regarding discovery of ESI using search terms. I don't think many attorneys would want to be in a position of turning over tens of thousands of potentially non-responsive documents.
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