*1 Before the Court is Plaintiffs' Motion to Clarify Orders Concerning Discovery and Electronically Stored Information, (Dkt. 196), and the filings responsive thereto, (Resp., Dkt. 199; Reply, Dkt. 208).

In August 2017, the Court entered an agreed order between the parties in this case regarding the production of electronically stored information (“ESI”) (the “agreed ESI order”). (Agreed ESI Order, Dkt. 176). Because the parties were unable to agree on some topics, including the use of additional search terms, the Court subsequently entered another order regarding ESI (the “second ESI order”). (Second ESI Order, Dkt. 222). Plaintiffs now complain that Defendant Baylor University (“Baylor”) “claims that it can review the materials yielded from search terms for responsiveness or relevance and withhold documents.” (Mot. Clarify, Dkt. 196, at 1). Plaintiffs seek an order directing that all materials returned in ESI searches, whether those searches used the terms agreed to by the parties or previously ordered by the Court, be produced regardless of Baylor's assessment of the materials' relevancy or responsiveness. Baylor objects.

Because the ESI searches in this case are governed by two separate orders, as detailed above, the Court deems it necessary to evaluate Plaintiffs' argument separately with respect to each of those orders.

Plaintiffs' motion makes frequent reference to the agreed ESI order previously entered by the Court, going so far as to state that “Baylor should not be allowed to withhold [responsive ESI materials] because the order, ECF 176, does not provide for it.” (Mot. Clarify, Dkt. 196, at 3). The agreed ESI order, however, specifically states that none of its provisions were “intended to or [would] serve to limit a party's right to conduct a review of documents, ESI, or information (including metadata) for relevance, responsiveness, and/or segregation of privileged and/or protected information before production.” (Mot. Clarify, Dkt. 196, at 1, 3; Agreed ESI Order, Dkt. 176, at 6). With respect to materials yielded by search terms in the agreed ESI order, then, Plaintiffs' request for relief is DENIED.

The second ESI order, which was not the product of an agreement between the parties but rather of the Court's own analysis, did not address whether Baylor could review the yielded ESI material for responsiveness and relevance. (See generally Second ESI Order, Dkt. 222).

Baylor maintains that Federal Rule of Civil Procedure 26(b) “does not mandate production of ESI that is not responsive to a discovery request.” (Resp., Dkt. 199, at 4). In support, the university references a recent opinion by a United States Magistrate Judge denying a similar motion to compel. (Id. (citing BancPass, Inc. v. Highway Toll Admin., 2016 WL 4031417 (W.D. Tex. July 26, 2016))). The magistrate judge's opinion, however, rested not on the interplay between ESI search terms and Rule 26(b), but on the parties' own communications regarding the scope of production. BancPass, 2016 WL 4031417, at *3. Moreover, the magistrate judge specifically noted that he was comfortable denying the motion to compel because there was “no reason to believe that [the defendant] ha[d] withheld documents it was obligated to produce” and because it was unclear that “additional searches with the identified search terms would produce more documents responsive to [the plaintiff's] requests for production.” Id. Previous discovery issues in the instant case leave the undersigned less certain that the same is true here. (See, e.g., Dkts. 165, 169, 174).

*2 However, Plaintiffs have failed to provide either (1) specific, compelling evidence suggesting that Baylor is withholding responsive ESI material; or (2) legal argument regarding the interplay between Rule 26(b) and the rules governing the disclosure of ESI. Given those oversights, as well as the language in the agreed ESI order establishing either party's ability to make the types of withholdings at issue in the instant motion, the Court sees no reason to direct the production of volumes of material that are nonresponsive to specific requests for production. With respect to materials yielded by search terms in the second ESI order, then, Plaintiffs' request for relief is DENIED.

Plaintiffs' Motion to Clarify Orders Concerning Discovery and Electronically Stored Information, (Dkt. 196), is DENIED.

SIGNED on May 6, 2018.