In O’Donnell/Salvatori Inc. v. Microsoft Corp., No. C20-882-MLP (W.D. Wash. Oct. 1, 2021), Washington Magistrate Judge Michelle L. Peterson denied the plaintiff’s motion to compel Microsoft to produce all ESI retrieved from search results, finding that “a party’s agreement to run search terms does not waive its right to review the resulting documents for relevance so long as the review can be done in a reasonably timely manner.”

Case Background

In this dispute over royalties associated with a musical theme and soundtrack for the popular Halo videogame, the Court signed an ESI Order in November 2020, where the parties agreed to use search terms to locate ESI likely to contain responsive and discoverable information. Twice this year, the parties requested the Court’s intervention in determining appropriate search terms under the ESI Order and were finally able to agree on search terms for the defendant to use in satisfying its obligations under the ESI Order in May 2021.  The defendant ran the agreed searches and reviewed the documents for privilege as well as responsiveness to the plaintiff’s discovery requests, with an instruction from Microsoft’s counsel to attorneys reviewing the documents to err on the side of inclusion.

The defendant produced documents on a rolling basis, identifying a number of documents that were not relevant to a claim or defense in the case, but the plaintiff objected, believing that the defendant was not permitted to conduct a relevance review of the documents that hit on the agreed search terms or withhold those documents, leading to the plaintiff’s motion to compel Microsoft to produce all ESI retrieved from the search terms.  The plaintiff’s position was that the relevance standard (“relevant to any party’s claim or defense and proportional to the needs of the case”) from FRCP Rule 26(b)(1) does not apply to document productions that are the result of the execution of search terms under the Court’s ESI Order and the producing party is not entitled to withhold documents based on relevance.

Judge’s Ruling

Judge Peterson began her analysis with a statement of Rule 26(b)(1) and the plaintiff’s position.  She also stated: “While there is little case law on this issue, the courts that have addressed it have almost uniformly found that a relevance review, and the withholding of irrelevant documents, is appropriate.”  She also noted that the plaintiff incorrectly attributed a statement from the case Ball v. Manalto, Inc. rejecting support for the argument of reviewing search results to Chief Judge Martinez in the case, when in fact he was quoting the plaintiff’s argument in the case.

Judge Peterson also cited three other cases: 1) FlowRider Surf, Ltd v. Pacific Surf Designs, Inc., which the plaintiff cited, even though the case ruling contradicted its argument by finding that the plaintiff did not waive its right to conduct a relevance review by agreeing to run search terms, 2) BancPass, Inc. v. Highway Toll Admin., LLC, where the court held that the parties’ agreement was a way to simplify and limit the scope of production, but it did not obligate the parties to produce non-responsive documents, and 3) Palmer v. Cognizant Tech. Sols. Corp., where the court held that production of all search results “is not the standard under Rule 26 …, which provides that discovery may be obtained ‘regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.’”

As a result, Judge Peterson stated in declining to compel Microsoft to produce all ESI retrieved from the search terms: “This Court similarly holds that a party’s agreement to run search terms does not waive its right to review the resulting documents for relevance so long as the review can be done in a reasonably timely manner. Here, Microsoft had the ability to hire contract reviewers – who review documents for a living – to conduct a document-by-document review of the production to determine relevance, and was therefore able to conduct the review within a reasonable time frame.”

As evidenced from the graphic above, I will be discussing this case tomorrow in the ACEDS/eDiscovery Assistant #caseoftheweek broadcast, including one of the referenced cases above – BancPass, Inc. v. Highway Toll Admin., LLC, which I covered back in 2016 when the ruling happened.  Join me here at 11:30am ET (10:30am CT, 8:30am PT)!

So, what do you think?  Are there any circumstances where a party should be required to produce all ESI from search results?  Please share any comments you might have or if you’d like to know more about a particular topic.

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