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February 28, 2018 Practice Points

The Nonresponsive Document Dilemma: What Happens If Your Opponent Can’t Trust You

Will your judgment about what’s not relevant be trusted blindly by your opponent? Why should it be?

By Andrew J. Felser

The court approves search terms for you to find and produce electronically stored information (ESI) under Fed. R. Civ. P. 26(a)(1). You run the searches and cull the results for duplicates, privileged documents, and documents that you consider irrelevant and beyond the scope of discovery. You produce your relevant, non-privileged ESI. You produce a privilege log, but you don’t produce a log of the documents you withheld as irrelevant. Will your judgment about what’s not relevant be trusted blindly by your opponent? Why should it be?

The parties in Nachurs Alpine Sols., Corp. v. Banks, 2017 U.S. Dist. LEXIS 104778 (N.D. Iowa July 7, 2017) came close to solving this dilemma, but the court had to close the final gap. After conferral, the defendant agreed to produce a log of roughly 24,000 documents withheld as “nonresponsive,” a term the court interpreted as meaning “beyond the scope of discovery.” Based on the log, the plaintiff asked the court to compel the defendant to re-review all of the withheld documents for responsiveness, applying four categories that the plaintiff considered relevant, or in the alternative to pay the plaintiff’s cost of reviewing an “attorney’s eyes only” production of the documents (the parties were business competitors). The defendant argued that the request for re-review and cost-shifting was disproportional and too burdensome. The defendant asserted that the information sought could be had by other means, including depositions and written discovery.

The court began its analysis by reviewing the proportionality factors in Fed. R. Civ. P. 26(b)(1). The court then noted the shifting burdens of persuasion. The requesting party must first make a threshold showing that the documents withheld fall within the scope of discovery. The burden then shifts to the resisting party to show—in a fact-based, nonconclusory manner—that the discovery is disproportional or otherwise unreasonable in burden or scope. The court found that the plaintiff here satisfied its threshold burden, though just barely. The court accepted defense counsel’s representation that the documents were irrelevant as made in good faith. The court agreed that it made little sense to require defense counsel to re-review the documents without producing them, because the plaintiff would still distrust the results. However, the court was concerned that defense counsel’s representation could not be tested without allowing the plaintiff’s counsel to review the documents.

From this the court fashioned a Solomonic compromise. It ordered the defendant to produce all 24,000 documents for attorney’s eyes only. Plaintiff’s counsel would have to review the documents at its own expense. However, if that review resulted in the discovery of any documents that were wrongly withheld, the plaintiff could ask the court for sanctions.

The parties here should be commended—and were commended by the court—for trying in good faith to resolve their dispute over relevance, a dispute that plagues every case of any consequence. The result here highlights the fact that no solution works until the parties—or ultimately, the court—can appease the requesting party’s natural distrust of the other’s party’s production. If there are demonstrable grounds for the requestor’s lack of trust, chances are the court will intervene and fashion some form of relief.


Andrew J. Felser is an attorney in Denver, Colorado.

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