Federal Court Rules on Whether Documents Containing Agreed-Upon Keywords are Responsive Per Se

Craig Ball highlights Doug Austin‘s awesome eDiscoveryToday blog, which features a piece on O’Donnell/Salvatori Inc. v. Microsoft Corp., No. C20-882-MLP (W.D. Wash. Oct. 1, 2021).  In this case, Magistrate Judge Michelle Peterson addresses whether or not a producing party much turn over all documents that hit on agreed-upon search terms.  Craig ends this concise piece with the following helpful eDiscovery survival tip:

Practice Tip:  If you enter into an agreement with the other side to use keywords and queries for search, be clear about expectations with respect to the disposition of items hit by queries.  Assuming the items aren’t privileged, are they deemed responsive because they met the criteria used for search or is the producing party permitted or obliged to further cull for responsiveness based on the operative Requests for Production?  You may think this is clear to the other side; but, don’t count on it.  Likewise, don’t assume the Court shares your interpretation of the protocol.  Just settling upon an agreed-upon list of queries may not be sufficient to insure a meeting of the minds.

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Written by Craig Ball

Craig Ball of New Orleans and Austin is a Texas trial lawyer, computer forensic examiner, law professor and noted authority on electronic evidence. He limits his practice to serving as a court-appointed special master and consultant in computer forensics and electronic discovery and has served as the Special Master or testifying expert in computer forensics and electronic discovery in some of the most challenging and celebrated cases in the U.S.

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