Chief Judge James K. Bredar of the U.S. District Court for the District of Maryland found that a party was required to review documents for relevance before producing them, relying on an ESI protocol provision stating “a party’s obligation to conduct a reasonable search for documents in response to discovery requests shall be deemed to be satisfied by reviewing documents that are captured by utilizing the methodology provided for in this protocol.”

In holding that McCormick was required to review documents prior to production, the court relied heavily on the plain language of the ESI protocol, as it constituted an agreement between the parties. We work closely with case teams and opposing counsel to negotiate and prepare ESI protocols, ensuring clients understand all obligations prior to reaching an agreement.

The dispute at issue in McCormick & Co., Inc. v. Ryder Integrated Logistics, Inc., Civil No. JKB-22-0115, 2023 WL 2433902 (D. Md. Mar. 9, 2023) began when McCormick learned during discovery that a key custodian’s files had been deleted when she left the company, despite the issuance of a litigation hold. In an attempt to capture communications that included the key custodian, McCormick collected the emails of six additional custodians, ran the key custodian’s name across them as a search term, and included the hits and their families in its production. McCormick did not manually review the documents prior to production, and approximately 30% of the hits with families that were produced by McCormick were a result of this attempt to address the improper deletion of custodial files. When defendant Ryder objected to the voluminous production, McCormick argued the ESI protocol, which was entered as an order of the Court at McCormick’s request, did not require it to manually review documents. McCormick also argued that a document-by-document review would be too costly, as an estimated $240,000 review was not proportional to the needs of the case in a $4 million contract dispute.

Judge Bredar rejected McCormick’s arguments that it was not required to review documents for relevance prior to producing them, finding:

• The ESI protocol’s terms clearly required the parties to review documents prior to production, and McCormick’s view that the protocol provided a party “may” take the opportunity to review documents if it wished was not supported by the document’s plain language;
• McCormick’s proffered interpretation that the ESI protocol only required a party to review the documents, not remove any from the universe of documents generated by the search terms before producing them, defied logic and was also irrelevant because McCormick had already admitted that it did not review the documents; and
• The costs of the review were proportional, considering McCormick was attempting to produce a large volume of potentially responsive documents due to its own error in deleting the documents of a key custodian despite a litigation hold.

Joe A. Tate, Jr., Member and Managing Director of CODISCOVR, focuses his practice on eDiscovery, information governance, and data management issues in the context of litigation and investigations. In his role, Joe is responsible for the day-to-day management of a team of attorneys and technologists that handle all phases of the eDiscovery lifecycle. Connect with Joe →

Nicole Gill, Counsel at CODISCOVR, concentrates her practice on electronic discovery in a variety of contexts, manages complex document review workflows, and routinely navigates data and privacy protection laws across many jurisdictions, both domestic and foreign. Nicole also implements quality control procedures to mitigate risk and counsels both clients and colleagues on issues related to eDiscovery, information governance and data management. Connect with Nicole →