E-Discovery Update

Producing Search-Term Hit Reports: Another Form of Discovery on Discovery

July 8, 2016

You may have learned everything you need to know in kindergarten, but perhaps sharing is overrated when it comes to a search-term hit report. A search-term hit report is generated when search terms are applied to a larger set of collected documents to cull the documents that should actually be reviewed.

Hit reports, by themselves, are of limited value, however. They do not speak to whether the hits are relevant, but merely show how many documents hit on a particular word. They can, however, sometimes identify anomalies that can be researched further by looking at sample documents. For example, if a hit report indicates that a term hits on most of a custodian’s emails, it may lead counsel to look at some of the hits and realize that a term is hitting on a signature line and may need to be removed or limited further.

Despite their limited utility in identifying the number of relevant documents, it is not uncommon for parties to request hit reports in the course of search-term negotiations. Counsel may not want to share a hit report because it may divulge counsel’s mental impressions of terms deemed important in the matter and therefore be protected work product. Divulging the hit report also discloses to opposing counsel the total number of documents collected and may set false expectations regarding the size of the potential production. Opposing counsel may assume that because a document hits on a term it is relevant and then expect to receive at least the majority of documents that hit on the search terms. In fact, it is very common for a high percentage of the documents that hit on search terms — sometimes 80 percent or more — to be nonresponsive.

Courts have been hesitant to order production of hit reports absent a good reason to do so. In Freedman v. Weatherford Int’l Ltd., No. 12 Civ. 2121, 2014 WL 4547039, *1 (S.D.N.Y. Feb. 12, 2014), for example, the court initially denied the plaintiff’s request for a search-term hit report, but agreed to hear a motion for reconsideration based upon new evidence. The new evidence was several emails produced by a third party that should have also been in the defendant’s control and possession, but were not produced by defendant. The court did not find this evidence persuasive because only a few of the emails would have been identified by the relevant search terms. Noting that the “Federal Rules of Civil Procedure do not require perfection,” the court denied the plaintiff’s renewed request for a search-term hit report because the “proposed exercise [was] unlikely to remedy the alleged discovery defects.” Thus, the court determined that absent a showing of discovery wrongdoing, compelling production of a search-term hit report was just another attempt at the loathed “discovery on discovery.”

In Ameriwood Indus., Inc. v. Liberman, No. 4:06-CV-524, 2007 WL 685623, *1 (E.D. Mo. Feb. 23, 2007), the court similarly denied the plaintiff’s request for “information regarding the ‘hits’ generated by [the defendant’s] searches.” Here, the parties had agreed on a search-term protocol, but sought clarification on a disputed issue — whether the plaintiff should be “provided information regarding the ‘hits’ generated by the searches.” With little elaboration as to why, the court denied this request. Presumably, the court reached this conclusion because there is little reason for opposing counsel to micromanage this issue without a showing that the searching party will act unreasonably.

Generally, in cases where courts require parties to provide search-term reports, the court has found some discovery misconduct or shortfall. For example in Procaps S.A. v. Patheon Inc., No. 12 Civ. 24356, 2014 WL 800468, *2 (S.D. Fla. Feb. 28, 2014), the court ordered production of the search-term report after finding discovery violations by plaintiff Procaps, S.A., including failure to implement a litigation hold and allowing executives to utilize a single search term to collect their own emails.

In the context of a third-party subpoena, one court declined to order the production of a search-term hit report where there was no “showing of bad faith or any other indicia of unreliability in the representation” of the third party’s counsel that no relevant information was obtained through the search for documents. Integrated Serv. Solutions, Inc. v. Rodman, No. 07-CV-3591, 2008 WL 4791654, *4 (E.D. Pa. Nov. 3, 2008). The plaintiff sought all “responsive” data concerning the third party and defendant Dennis Rodman. After much discussion between the plaintiff and the third party, they reached an agreement allowing PricewaterhouseCoopers (PWC) to perform an analysis of a laptop thought likely to contain relevant information. After the analysis, counsel for the third party reviewed the documents hitting on certain search terms, determined that they were not relevant to the lawsuit, and provided a declaration to that effect. Plaintiff sought a written report detailing PWC’s inspection, a search-term hit report, copies of all files identified by the search terms, and information on the chain of custody and collection process.

Reasoning that the plaintiff had provided no evidence of bad faith or missing documents and considering that this impacted an entity that was not a party to the lawsuit, the court limited its order to requiring a written statement from PWC as to its search methods, a summary of the types of documents identified by the search, and a statement that it found no evidence of document deletion. The Integrated case supports the concept that a party (or non-party) should not be required to provide such behind-the-scenes information as a hit report without some showing of failure in the discovery process.

In sum, if there are egregious discovery shortfalls, counsel will likely need to be transparent with the hit report to get the discovery back on track. But where the case is moving forward smoothly and there is no evidence of bad faith, a court will likely not force disclosure. Although your kindergarten teacher wanted you to share, the courts have given approval to keep the hit report private.

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