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 ...
