In the case In re Realpage, Inc., Rental Software Antitrust Litig. (No. II), No. 3:23-md-03071, MDL No. 3071 (M.D. Tenn. May 28, 2025), Tennessee District Judge Waverly D. Crenshaw Jr., stating: “it is Sares Regis’s obligation—not Plaintiff’s—to conduct the responsiveness review of its own documents to determine which it must produce”, ordered defendant Sares Regis to: “(1) continue to review documents per the TAR protocol; (2) review for responsiveness, rather than simply producing all search term hits; and (3) complete its review and document production by Monday, June 9, 2025.”

Case Discussion and Judge’s Ruling

In this MDL involving claims of illegal price-fixing involving student and multifamily rental housing markets, the Court, on March 7, 2025, ordered Sares Regis to produce documents responsive to Plaintiff’s RFPs using the August 30, 2024 search terms by March 28, 2025. The Court cautioned that if Sares Regis failed to meet that deadline, it was to inform the Court “as to the percentage of documents that remain unproduced, why they have not been produced, and their anticipated date of production.” Sares Regis failed to meet its March 28 deadline. Instead, it sought an extension to April 28, 2025 to finish conducting its document review and production, given the breadth of documents hitting on Plaintiffs’ TAR search terms, which the Court permitted.

Sares Regis missed the revised April 28 production deadline as well. Rather than continuing to review and produce its responsive documents pursuant to proper discovery protocol, Sares Regis presented Plaintiffs with three options for receiving its remaining documents:

1. Produce more than 6 million documents that hit on the TAR search terms;
2. Produce the more than 3 million documents that hit on the August 30 search terms; or
3. Produce documents that the TAR model has determined are likely responsive while sampling the remaining documents to confirm they are nonresponsive.

Plaintiffs took issue with all three of these proposals, contending that Sares Regis was disregarding its obligations in refusing to review its remaining documents for responsiveness, and instead sought to impose that burden on Plaintiffs after production. Sares Regis disagreed, contending that Plaintiffs’ objections to these proposals amounted to burden objections that should be disregarded by the Court considering Plaintiffs set the parameters for the document review process.

Judge Crenshaw stated: “The Court does not need a discovery conference or further briefing to resolve this dispute. It is evident that this is yet another attempt by Sares Regis to avoid complying with the Court’s orders. Sares Regis now seeks to impose its discovery obligations onto Plaintiffs by forcing them to sift through millions of documents post-production that Sares Regis admits it has not reviewed for responsiveness. Under Rule 34, it is Sares Regis’s obligation—not Plaintiff’s—to conduct the responsiveness review of its own documents to determine which it must produce… However, by Sares Regis “disregard[ing] common discovery protocol and practice” by abjectly refusing to review for responsiveness here, it is apparent that such action is now necessary.”

As a result, Judge Crenshaw ordered: “Pursuant to this Order, Sares Regis shall: (1) continue to review documents per the TAR protocol; (2) review for responsiveness, rather than simply producing all search term hits; and (3) complete its review and document production by Monday, June 9, 2025. At this point, the Court will not compel Sares Regis to hire additional attorneys to complete the review process. But while the Court permits Sares Regis discretion on how to complete its document review, it cautions Sares Regis that it must ensure it does so through whatever means it chooses. Should Sares Regis continue to evade its obligations, sanctions could be in its future.”

So, what do you think? Do you agree with the Court’s order to continue to review documents per the TAR protocol instead of allowing Sares Regis to produce documents that the TAR model has determined are likely responsive? Please share any comments you might have or if you’d like to know more about a particular topic.

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