The influence of modern technology on the legal profession over the years has been somewhat of a double-edged sword. On one end, advanced software solutions have made legal teams vastly more efficient when it comes to critical processes like ediscovery. But on the other hand, the pace at which the volume and complexity of electronically stored information (ESI) continue to increase can be challenging for the broader legal system to keep up with. This challenge is why some of the most important cases to watch are those that confront this imbalance, and more importantly, that have the potential to solve for one or more ambiguities that still exist in relation to the disclosure and discovery of ESI.
One such ambiguity relates to relevance reviews in the context of search term agreements, and a recent opinion passed down in the case of O’Donnell/Salvatori Inc. v. Microsoft Corp. could be particularly useful going forward when it comes to establishing modern disclosure obligations, as well as determining the relevancy of large volumes of ESI. The case is significant because it further defines what should and shouldn’t be in search terms agreements. However, it’s clear that future cases will require more explicit and more specific terms to avoid any confusion.
The Dispute: Court Sanctions Withholding Irrelevant Documents, Despite Plaintiff’s Request
In June 2020, Martin O’Donnell and Michael Salvatori (on behalf of their audio production company, ODS) filed a lawsuit against Microsoft, claiming that the software giant had failed to pay out royalties for their contributions to the widely-popular Halo video game series.
As part of a court-stipulated ESI order, both parties agreed on search terms to be used to identify “responsive and discoverable” information related to the case. Microsoft produced and disclosed documents to ODS using the agreed-upon search terms but withheld information they deemed irrelevant to the case. ODS objected, claiming that Microsoft did not have permission to conduct a relevance review, and ultimately filed a motion “to compel Microsoft to produce all non-privileged documents hitting on the search terms, regardless of whether they are relevant to a claim or defense in [the] case.”
On October 1, 2021, Judge Michelle L. Peterson denied ODS’s motion, citing a 2015 amendment to Rule 26(b)(1) related to the production of relevant evidence, which states that “parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” In her ruling, Judge Peterson went on to say that “while there is little case law [on the issue], the courts that have addressed it have almost uniformly found that a relevance review, and the withholding of irrelevant documents, is appropriate.”
Key Takeaway: Implications on the Future of Ediscovery Processes
Judge Peterson’s ruling is important for several reasons, most of all because it brings us closer to understanding what an ESI order based on search terms requires of a legal team, as well as what it does not. Here are some key takeaways from the decision to help put its implications on the future of ediscovery and disclosure processes in perspective:
Search term agreements do not waive the right to review for relevancy. It’s important to remember that ESI orders based on search terms are relatively new, and at the core of ODS’s motion was the insistence that “the relevance standard from the civil rules does not apply to document productions that are the result of the execution of search terms…” Peterson’s ruling on this matter is one of only a few to precede it and constitutes another step toward reinforcing the existing civil rules as they relate to emerging processes such as search term agreements.
Efficiency matters. In her ruling, Judge Peterson was careful to point out that a relevance review is appropriate according to the civil rules “so long as the review can be done in a reasonably timely manner.” And while the court does not attribute Microsoft’s ability to conduct an efficient review to technology directly, it is reasonable to conclude, given the volume and diversity of information that can be produced by a single query, that this standard would have been extremely difficult, if not impossible, to meet without the aid of sophisticated ediscovery software or automation tools.
Final Thoughts on O’Donnell/Salvatori Inc. v. Microsoft Corp
Although Judge Peterson’s ruling does help to reinforce an existing precedent here, she does admit that it might be necessary to establish additional clarity at the outset of search term agreements in future cases. More specifically, she wonders whether ESI orders might benefit from more explicit timeframe limitations and permissions to withhold irrelevant information: “The question not presented to the court, however, is whether a party’s right to conduct a document-by-document review should be limited based on the time required to conduct the review either by further refining the search terms or producing all documents with an agreement to claw back irrelevant documents.”
Are you interested in finding out how legal professionals use modern ediscovery technology and what the future means moving forward for the legal industry? Check out our year in review report, “Lighting the Way: 2021 Ediscovery Trends & Everlaw’s 2022 Predictions,” to learn more.