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.