In Apothio, LLC v. Youngblood, No. 1:20-cv-00522-JLT-CDB (E.D. Cal. Oct. 10, 2025), California Magistrate Judge Christopher D. Baker ordered that “each party shall provide the others with search terms and custodians used to date to identify responsive materials within the producing party’s ESI, as well as a corresponding hit report”, as well as ordering defendants to serve an amended response to Plaintiff’s RFPs to identify whether any responsive documents are withheld and the privilege basis for the withholding, as well as a privilege log.

Case Discussion and Judge’s Ruling

In this case, Plaintiff was reportedly unsuccessful in attempting over several months to obtain Defendants’ consent to an ESI protocol. Following a mid-discovery status conference, the Court ordered the parties to file either a jointly proposed protocol governing production of ESI or, if agreement could not be reached, their respective proposed protocols and/or a statement setting forth why such protocol is unwarranted. Plaintiff complied with the Court’s order and filed its proposed protocol. Defendants did not comply, prompting the Court to issue an order to show cause why they should not be sanctioned for failure to comply with a court order. Following receipt of Defendants’ respective responses to the show cause order, the Court entered Plaintiff’s proposed ESI protocol.

Subsequently, Plaintiff sought an order enforcing the following provision of the ESI protocol: “Upon request, the producing party shall provide the search terms and custodians used to identify responsive materials, as well as a corresponding hit report that shows how many documents, exclusive and inclusive of families, contain each search term or string.” During the discovery dispute conference, Defendants did not object to complying with this provision but requested that the Court enforce the provision upon all parties (including Plaintiff) and provide clarification concerning the phrase “hit report.”

Judge Baker stated: “In resolving earlier discovery disputes among the parties, the Court has confirmed that ‘parties appropriately may seek discovery on an adversary’s discovery efforts,’ including through production of information revealing search and collection methodology, search terms used, and sources searched.”

Continuing, he said: “The Court will require both parties to comply with Paragraph 5 of the ESI protocol. Specifically, each party shall provide the others with search terms and custodians used to date to identify responsive materials within the producing party’s ESI, as well as a corresponding hit report that shows how many documents, exclusive and inclusive of families, contain each search term or string. If the producing party’s ESI tools are not reasonably capable of providing numbers of family members, the producing party shall identify the ESI tools reasonably available to and used by the producing party and certify in its response its inability to return information about family members.” He also added: “The Court declines Defendants’ invitation to further define terms such as ‘hit report’ and ‘families’ as a reasonably diligent search of this Court’s and the Circuit’s jurisprudence governing ESI reveals that the terms are commonly accepted.”

The Court had directed Defendants to provide amended responses to certain of Plaintiff’s requests for production of documents (“RFPs”) in a prior order.  Because Defendants asserted in response to virtually all of the RFPs at issue objections based on attorney-client and work product privileges, the Court ordered Defendants’ amended responses include as applicable (a) a statement for each RFP response whether any responsive documents are withheld and the basis for the withholding, and (b) a privilege log.

Plaintiff asserts that Defendants’ amended responses to its RFPs did not include a privilege log, which, it asserts, constitutes a waiver by Defendants of any entitlement it has to invoke the privilege. But Defendants represent that they did not reassert in their amended responses to Plaintiff’s RFPs an objection on grounds of privilege and, hence, were not required to produce a privilege log. However, counsel for Plaintiff represented during the discovery dispute conference that Defendants asserted a privilege objection in response to other of Plaintiff’s RFPs that were not at issue in connection with the disputes resolved by the Court’s most recent order on Plaintiff’s motion to compel.

So, Judge Baker stated: “Accordingly, the Court clarifies and will direct Defendants, for any operative RFP response…in which they assert an objection based on attorney-client or work product privileges, to serve amended responses that include, as applicable, (a) a statement for each RFP response whether any responsive documents are withheld and the basis for the withholding (i.e., whether attorney-client or work product privileges), and (b) a privilege log.”

So, what do you think? Do you agree with the Court’s ruling to order the parties to produce search terms and custodians used, as well as a hit report? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of Minerva26, an Affinity partner of eDiscovery Today.

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