In McCormick & Co. v. Ryder Integrated Logistics, Inc., No. JKB-22-0115 (D. Md. March 08, 2023), Maryland District Judge James K. Bredar overruled McCormick’s objections to a magistrate judge’s ruling which determined that document review was required by the ESI Protocol agreed to by the parties and rejected McCormick’s argument that the costs associated with such manual review was not proportional to the case.
In this case involving claims relating to breach of contract where complaints by each party were consolidated for discovery purposes, the parties agreed to an ESI Protocol. The ESI Protocol provided, under a subsection titled “No Presumption of Responsiveness,” that “a party’s obligation to conduct a reasonable search for documents in response to discovery requests shall be deemed to be satisfied by reviewing documents that are captured by utilizing the methodology provided for in this Protocol” and that “[t]he fact that a document is captured by a search pursuant to this protocol does not mean that such document is responsive to a discovery request or otherwise relevant to this litigation and Parties may exclude such nonresponsive documents from production.”
Subsequently, McCormick learned that, despite the issuance of a litigation hold, custodial files for “a key custodian and witness” were deleted when she left McCormick’s employment. McCormick gathered ESI for six additional custodians to ensure that her communications with Blasingame would be captured, and searched her name across McCormick’s ESI, which resulted in a significant increase in the number of potentially relevant documents (20,398, which was “approximately 30%” of the 67,839 documents with families McCormick identified.
The parties disagreed as to whether they were required to manually review these documents for relevance prior to production, or whether they could produce those documents without a document-by-document review. Therefore, McCormick filed a motion seeking for the Court to: (1) enter the parties’ ESI Protocol as an order of the Court and (2) declare that the ESI Protocol did not require that the parties conduct a manual review of documents identified through the use of search terms. Ryder opposed this motion to the extent that it sought a declaration from the Court that the ESI Protocol did not require a manual review of documents.
Magistrate Judge A. David Copperthite granted the motion to the extent that it sought that the ESI Protocol be entered as an order of the Court, but denied the motion to the extent that it sought a declaration that the ESI Protocol did not require a manual review of the documents, finding that document review was required. He also rejected McCormick’s argument that the costs associated with such manual review—which McCormick estimated at $240,000 for a disputed amount of no more than $4 million—was not proportional to the case.
Judge Bredar stated: “Under the clearly erroneous standard,… the court is only required to determine whether the magistrate judge’s findings are reasonable and supported by the evidence.” Continuing, he stated: “McCormick incorrectly states that the ESI Protocol ‘provide[s] only that a producing party ‘may’ take the opportunity to review documents ‘that are captured utilizing the methodology provided for in this Protocol[.]’ ‘…McCormick also states that the Discovery Order ‘ignores the plain language to the effect that a party’s obligation to search for responsive documents ‘shall be deemed to be satisfied’ once the party has applied the search terms to its store of ESI.’…In both of these instances, McCormick omits a crucial portion of the ESI Protocol, which provides that ‘a party’s obligation to conduct a reasonable search for documents in response to discovery requests shall be deemed to be satisfied by reviewing documents that are captured by utilizing the methodology provided for in this Protocol.’”
In upholding the ruling that document review was required by the ESI Protocol and that the Discovery Order doesn’t contravene the six proportionality factors set forth in Federal Rule of Civil Procedure 26(b), Judge Bredar stated: “McCormick is mistaken. While the Discovery Order did not march through each of these standards, it clearly took them into account, finding that that the costs of the review were proportional to the needs of the case…The Court also notes that this conclusion is particularly appropriate where, as here, there appears to be a large volume of potentially responsive documents due to an error by McCormick whereby the documents of a key custodian were deleted despite a litigation hold. Further—and again—the parties agreed to this review by the plain language of the ESI Protocol.”
So, what do you think? Do you agree that document review was required by the ESI Protocol? Would it have been without one? Please share any comments you might have or if you’d like to know more about a particular topic.
Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.
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