*1 Defendant BP has filed a motion to modify Plaintiff's subpoena to produce documents and motion for expedited consideration. ECF Doc. 91. Plaintiff responded in opposition.[1] ECF Docs. 95 & 96. After reviewing the parties' submissions, the Court concludes the motion should be granted and BP may use a date range of April 20, 2010, to April 20, 2012, and the 32 search terms listed on pages 7 through 9 of ECF Doc. 91-13 to identify relevant Exponent documents that will be reviewed for privilege and produced to Plaintiff. However, the Court finds BP is required to individually log every Exponent document it withholds based on privilege.

I. Background

After the Deepwater Horizon accident, BP retained Exponent, a scientific and engineering consulting firm, to assist with its response to the disaster. As part of its duties, Exponent performed nonprivileged spill response work in coordination with the Unified Area Command, which included representatives from several governmental entities; however, at the direction of BP's counsel, Exponent also performed privileged work in anticipation of litigation.

Plaintiff served a subpoena to produce documents on Exponent on July 5, 2022. ECF Doc. 91-1. After negotiations with Plaintiff regarding the scope of the subpoena, Exponent collected all emails from eight of its employees that were sent to or received from certain domain names over a roughly five-year period. ECF Doc. 91-13 at 4-5. Exponent did not review the 255,001 documents it collected for relevance and conducted only a limited privilege review. Instead, Exponent turned the documents over to BP, which is now performing a relevance and privilege review. Although the subpoena was issued to Exponent, Plaintiff has been communicating with and meeting with both BP and Exponent regarding the scope of the subpoena and production parameters.

BP estimates that of the 255,001 documents, more than 93,000 are communications directly with BP's counsel or include terms such as attorney work product or attorney-client privilege. ECF Doc. 91-13 at 6-7. To make its review more manageable, BP proposes using 32 search terms and date range of April 20, 2010, to April 20, 2012, to identify those documents that are likely to be relevant and/or not privileged.[2] Applying those search terms and date range yields 80,851 documents. ECF Doc. 91-13 at 13. To date, BP and Exponent have produced to Plaintiff approximately 41,000 of those 80,851 documents, including Exponent's sampling data during the response. ECF Doc. 91 at 4. In addition, due to the number of Exponent documents which are privileged, BP also asks that it be excused from identifying certain categories of documents in its privilege log.

*2 Plaintiff opposes BP's proposed approach. He argues BP should not be conducting a review for relevance and, instead, should review all 255,001 documents for privilege only. He also argues that BP should be required to identify every document withheld on the basis of privilege in a log, so as to allow him to challenge any assertion of privilege he finds objectionable.

II. Discussion

A. Search Parameters

“The reach of a subpoena issued pursuant to Fed. R. Civ. P. 45 is subject to the general relevancy standard applicable to discovery under Fed. R. Civ. P. 26(b)(1).” Syposs v. United States, 181 F.R.D. 224, 226 (W.D.N.Y. 1998) (citations omitted). Under that standard, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). The Court must limit the extent of discovery if it determines the proposed discovery is outside the scope permitted by Rule 26(b)(1). Fed. R. Civ. P. 26(b)(2)(C)(iii). In addition, the Court must quash or modify a subpoena that requires disclosure of privileged matter or subjects a person to undue burden. Fed. R. Civ. P. 45(d)(3)(A)(iii)-(iv).

Here, the Court concludes BP's proposed use of search parameters is reasonable and proportional to the needs of this case. First, although Plaintiff appears to object to BP's use of a date range and search terms as a filter, he does not explain why those search terms are inadequate for identifying the documents relevant to his claim.[3] He also does not suggest the proposed search terms will fail to yield responsive documents or leave responsive documents on the cutting room floor. Indeed, parts of Plaintiff's response are devoted to issues that are largely irrelevant to whether BP's use of search terms is reasonable, including arguing: (1) Exponent's communications regarding data generation are not privileged; (2) copying an attorney on an email does not make it privileged; and (3) noting Exponent scientists may have failed to disclose potential conflicts of interest in their publications and presentations. ECF Doc. 95 at 7-12, 15-33. And BP has identified several examples of documents provided by Exponent which clearly have no relevance to the issues in this case, such as a discussion about a lottery drawing between employees of Exponent and BP. ECF Doc. 91-13 at 38. Accordingly, Plaintiff's failure to demonstrate why BP's proposed search parameters are inadequate weigh in favor of allowing BP to use the parameters.

Second, requiring BP to review all 255,001 Exponent documents for privilege is unduly burdensome. BP estimates that reviewing all the Exponent documents, as opposed to the approximately 81,000 documents identified by the search parameters, would cost an additional $1.1 million. ECF Doc. 91-13 at 12-15. Considering Plaintiff has failed to show how the documents not identified by the search parameters are relevant to his claims, and the prohibitive cost to BP of reviewing all 255,001 documents, the Court finds the use of search parameters to reduce the number of documents that must be reviewed for privilege is proportional to the needs of the case. See Fed. R. Civ. P. 26(b).

*3 Third, Plaintiff's counsel has agreed to the use of search terms in other instances, including when it issued a subpoena to Battelle. ECF Doc. 91-13 at 11-12. However, nowhere in Plaintiff's response does he explain why the use of search terms was acceptable in those instances, but unacceptable in this instance.

Based on the foregoing, the Court will grant BP's motion to modify the Exponent subpoena to the extent that BP will be allowed to use a date range and search terms to reduce the number of documents that must be reviewed for privilege.[4] Nevertheless, the Court expects that BP will maintain copies of the unreviewed Exponent documents in case the parties later identify additional search terms that should be used, or if Plaintiff decides he wishes to pay the cost for BP to perform a privilege review of all the Exponent documents.

B. Privilege Log

BP also requests that it be permitted to submit a truncated privilege log to avoid the burden associated with logging tens of thousands of clearly privileged documents. ECF Doc. 91 at 25-28. Specifically, BP asks that it be excused from logging three categories of documents:

ECF Doc. 91 at 25. In response, Plaintiff argues it is necessary for BP to produce a detailed log for every document withheld on the basis of privilege so he can challenge the assertion of privilege. In particular, Plaintiff suggests that communications are not privileged simply because an attorney is copied on an email chain, and privilege does not attach to the facts underlying an expert's opinion.

Although BP claims its proposal regarding the privilege log is consistent with the Court's Order Governing Confidential Material and Discovery of Electronically Stored Information, ECF Doc. 91 at 25,[5] the Court is unsure which provisions of that Order BP is referring to, as the only provision related to a privilege log states, “With respect to privileged or attorney work product information generated after the submission of the valid Notice of Intent to Sue from which these proceedings arose, the parties are not required to include any such information in privilege logs.” ECF Doc. 14 at 11. Thus, that Order does not appear to excuse BP from the requirement that it create a privilege log for the withheld Exponent documents.

*4 Regardless, BP has not shown any privilege log short cut is needed. While BP believes roughly 93,000 of the 255,001 Exponent documents are privileged, it is unclear what portion of the 80,851 documents identified by the search parameters BP believes are privileged. The Court, therefore, cannot conclude that requiring BP to produce a privilege log for that subset of documents is too onerous.

Lastly, BP has requested that the Court set a deadline of May 28, 2023, for it to produce its final privilege log. ECF Doc. 91 at 28 n.8. The Court finds two months gives BP enough time to provide Plaintiff with a privilege log.

Accordingly, it is ORDERED:

1. BP's motion to modify Plaintiff's subpoena to produce documents, ECF Doc. 91, is GRANTED to the extent set forth herein.

2. BP is allowed to use a date range of April 20, 2010, to April 20, 2012, and the 32 search terms listed on pages 7 through 9 of ECF Doc. 91-13 to identify relevant Exponent documents that will be reviewed for privilege and produced to Plaintiff.

3. BP must produce a privilege log, consistent with Fed. R. Civ. P. 26(b)(5)(A), by May 28, 2023, for any document not produced from among the 80,851 documents identified by the search parameters.

4. BP shall retain any non-produced documents provided to it from Exponent.

DONE AND ORDERED this 27th day of March, 2023.