Counsel

Re: McCormick & Co., Inc. v. Ryder Integrated Logistics, Inc., Civil No. JKB-22-115*

Dear Counsel:

On December 16, 2022, McCormick & Co., Inc. ("McCormick") filed a Motion requesting that this Court interpret the terms of the parties' Joint Protocol for Discovery of Electronically Stored Information ("ESI"). ECF No. 37. McCormick's requested relief is two-fold, as it asks that the Court: (1) enter the Joint Protocol for Discovery of ESI as an Order of the Court and (2) declare that such ESI Protocols do not require that either party review documents identified via agreed­ upon search terms. ECF No. 37-6. Ryder Integrated Logistics, Inc. ("Ryder") responded in opposition on December 19 and December 30, 2022 (ECF Nos. 39, 42). On December 20, 2022, this case was referred to me. ECF No. 40. No hearing is necessary. Loc.R. 105.6 (D.Md. 2021). For the reasons set forth below, ECF No. 37 is GRANTED IN PART and DENIED IN PART.

Parties are entitled to "obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." Fed.R.Civ.P. 26(b)(1). This "relevancy standard" addresses "'concerns about the over breadth and expense of discovery,' and, thus, 'restrict[s] the scope of discovery to unprivileged facts relevant to the claim or defense of any party . . . "' EEOC v. Freeman, RWT-09-2573, 2012 WL 3536752, at *1 (D.Md. August 14, 2012) (quoting Thompson v. U.S. Dep't of Housing & Urban Dev., 199 F.R.D. 168, 171 (D.Md. 2001)). The 2015 amendments to Rule 26(b)(1) also require that discovery be "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."

For the better part of the last 20 years, courts around the country have been working to "address issues raised by difficulties in locating, retrieving, and providing discovery of some electronically stored information. Fed.R.Civ.P. 26(b)(2) advisory committee's note 2006 amendment. When seeking ESI, parties "may serve on any other party a request within the scope of Rule 26(b) . . . to produce . . . any designated documents or electronically stored information." Fed.R.Civ.P. 34(a)(1)(A). Under Rule 26(b)(2)(B), however, a responding party may avoid producing discoverable information if it shows that "the information is not reasonably accessible because of undue burden or cost." Even if this showing is made, courts retain the discretion to "order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C)." Fed.R.Civ.P. 26(b)(2)(B).

Initially, McCormick asks that the Court enter the parties' Joint ESI Protocol as an Order of the Court: ECF No. 37-1 at 8. This Court "encourages parties to submit to the Court for approval joint suggestions made pursuant to the Principles for the Discovery of Electronically Stored Information in Civil Cases." Local Rules, Appendix A, Guideline 2; see also U.S. District Court for the District of Maryland, Principles for the Discovery of Electronically Stored Information in Civil Cases, http://www.mdd.uscourts.gov/sites/mdd/files/ESI-Principles.pdf. Here, the parties have jointly drafted an ESI Protocol based on this Court's established ESI principles. See ECF No. 37-2. I have reviewed this protocol and find that it is both thorough and well-reasoned. Accordingly, the parties Joint ESI Protocol, ECF No. 37-2, is approved and shall be entered as an order of the Court.

McCormick next argues that the parties' ESI Protocol does not require that it perform a manual relevance review of the documents responsive to agreed-upon search terms. ECF No. 37-1. I disagree. Here, the language of the Joint Protocol demands that the parties do more than simply turn over all the documents that return as "hits" to the parties' search terms. The "No Presumption of Responsiveness" provision provides that "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 methodology provided for in this Protocol[.]" ECF No. 37-2 at 8 (emphasis added). It goes on to clarify that "[t]he fact that a docwnent is captured by a search pursuant to this protocol does not mean that such document is responsive to a discovery request or otherwise relevant to this litigation and Parties may exclude such nonresponsive documents from production." Id. Accordingly, I find that under the Joint Protocol, both parties are required to review all responsive documents for relevance prior to production to the opposing party. In addition to being true to the language of the Joint Protocol, this ruling is consistent with Federal Rule of Civil Procedure 26(b)(1)'s command that only relevant evidence be discoverable. See O'Donnell/Salvatori Inc. v. Microsoft Corp., 339 F.R.D. 275, 276 (W.D. Wash. 2021) (finding that, in the ESI discovery context, "a relevance review [of responsive documents], and the withholding of irrelevant documents, is appropriate"); Steven S. Gensler & Lumen N. Mulligan, Federal Rules of Civil Procedure: Rules & Commentary Rule 34 (2022) ("Not all documents that contain those search terms will be relevant to the claims or defenses and responsive to a proper document request. Thus, unless the parties agree otherwise, the producing party still reviews the 'hit' set for relevance and responsiveness (and, of course, privilege and work-product protection).").

Finally, McCormick argues in the alternative that the costs associated with conducting a relevance review of the responsive ESI documents would not be proportional to the needs of this case.[1] ECF No. 37-1 at 6. When controlling discovery, District Courts enjoy "wide latitude." Rowland v. Am. Gen. Fin., Inc., 340 F.3d 187, 195 (4th Cir. 2003) (quoting Ardrey v. United Parcel Serv., 798 F.2d 679, 682 (4th Cir. 1986)). Generally, "the presumption is that the producing party should bear the cost of responding to properly initiated discovery requests." Thompson v. U.S. Dep't of Housing & Urban Dev., 219 F.R.D. 93, 97 (D.Md. 2003). As such, the producing party "bears the burden of particularly demonstrating [a] burden and of providing suggested alternatives that reasonably accommodate the requesting party's legitimate discovery needs." Hopson; v. Mayor & Couns. of Balt., 232 F.R.D. 228, 245 (D.Md. 2005).

In support of its argument, McCormick cites this Court's opinion in In re Coventry Healthcare, Inc., ERISA Litigation, 290 F.R.D. 471 (D.Md. 2013): There, defendants argued that the burden reviewing more than 200,000 documents "for responsiveness and privilege" outweighed ''any potential benefit to the [p]laintiffs." Id. at 474-75. In an effort to reduce costs, the Court ultimately found that such expenses could be avoided by narrowing the discovery time period and entering a clawback order to "protect Defendants against a claim of waiver[.]" Id. at 476. I find Coventry Healthcare distingµishable from the instant case. There, plaintiff did not object to responsive but irrelevant documents being produced. Indeed, parties receiving ESI often request that responsive but irrelevant documents be tumed over. See, e.g., O'Donnell/Salvatori Inc., 339 F.R.D. at 277 ("This Court similarly holds that a party's agreement to run search terms does not waive its right to review the resulting documents for relevance so long as the review can be done in a reasonably timely manner."); Palmer v. Cognizant Tech. Sols. Corp., No. 17-6848-DMG, 2021 WL 3145982, at *9 (C.D. Cal. July 9, 2021) ("The Court will not compel defendants to produce any document simply because it contains a search term whether or not it is responsive to the discovery request, or, by extension, whether or not it is relevant and proportional to the needs of the action."). Unlike Coventry Healthcare, here, the parties jointly developed an intricate ESI protocol which requires that responsive documents be reviewed before they are produced. ECF No. 37-2 at 8.

McCormick represents in its papers that, based on agreed-upon search terms, it has identified 67,839 responsive documents and estimates that it will cost upwards of $240,000.00 to review this data set. ECF No. 37-1 at 7. This costs, McCormick asserts, is not proportional to the case which has a disputed amount of no more than $4,000,000.00. Id. at 4. McCormick instead proposes that both parties turn over all documents which "hit" upon the agreed upon search terms. While I acknowledge that reviewing these ESI datasets will result in additional costs, I find that, given the nature of the dispute, these costs are proportional to the needs of the case. The underlying claim in this case involves the interpretation of the parties Warehouse Service Agreement. ECF No. 1 at 3. The subject ESI could prove to be critical extrinsic evidence and both parties will benefit from receiving trimmed data sets containing only those documents which are pertinent to the underlying litigation. See Stemcells, Inc. v. Neuralstem, Inc., 115 F.Supp.3d 623, 635 (D.Md. 2015) ("If a contract is ambiguous, courts may look to extrinsic evidence to give meaning to the contract, but not to contradict the writing in question."). Additionally, the costs associated with conducting this relevance review will not fall solely on McCormick, as Ryder will also be responsible for reviewing its ESI data set.  

As to the Entry of the Joint Protocol for Discovery of Electronically Stored Information, McCormick's motion is GRANTED.

Accordingly, the parties' Joint Protocol for Discovery of Electronically Stored Information, ECF No. 37-2, is approved.

As to the Declaration of Requirements of that ESI Protocol, McCormick's Motion is DENIED.

Despite its informal nature, this is an ORDER of the Court and will be docketed accordingly.

Very truly yours,
A. David Copperthite
United States Magistrate Judge

Footnotes

*This case has been consolidated with Case No. JKB-22-119 for discovery and pretrial matters. See No. JKB-22-115, ECF No. 11.