A federal court in Texas recently refused to enforce the parties’ discovery agreement with respect to plaintiff’s request that the defendant produce all non-privileged documents responsive to search terms agreed to over email. In BancPass, Inc. v. Highway Toll Admin., LLC, 2016 U.S. Dist. LEXIS 96978 (W.D. Tex. July 26, 2016), the Court addressed a dispute between two companies that provide mechanisms for motorists to pay highway tolls while driving rental cars. In an effort to cooperate on electronic discovery in the case, BancPass and the Highway Toll Administration (“HTA”) negotiated certain search terms that the parties would use in order to locate and produce potentially responsive documents. The agreed upon search terms included the following:

• Smartphone /50 toll!

• Smartphone /50 threat

• Smartphone /10 app!

• Phone! /10 app!

• Double /10 bill

• Geotoll

BancPass filed a motion to compel all non-privileged documents that hit upon these search terms. Specifically, BancPass argued that the parties’ negotiations over these specific search terms, which occurred via written correspondence, constituted a binding and enforceable agreement between the parties. BancPass claimed that the parties agreed that “all non-privileged documents responsive to the additional search terms will be produced,” which it understood to mean that every non-privileged document the search turned up would be produced, regardless of whether it had anything to do with the parties’ dispute. Based on that understanding, BancPass ran the search terms against its data and produced all non-privileged documents that were hit by the search terms. HTA, on the other hand, produced only those documents that were hit by the search terms and which were relevant to the case, and withheld the rest. BancPass argued that an agreement by the parties to run search terms and produce all non-privileged results prevented HTA from later attempting to withhold documents based on relevance. The Court disagreed.

First, the Court reasoned that if it were to construe the parties’ correspondence on this topic to constitute a contract, it is likely that HTA’s actions would amount to a breach. The Court’s reading of the communications between the parties was that the parties agreed to produce all of the results of the searches except privileged documents. However, the Court held the parties’ e-mail exchange was not a contract. Rather, it was a means to simplify and limit the scope of production responsive to the parties discovery requests. Then, having reviewed the attached affidavits detailing HTA’s search and review process, the court found there was no reason to believe that HTA withheld documents it was obligated to produce and was under no obligation to produce documents that hit upon the search terms but that were not relevant to the case.

This case highlights that ESI is not necessarily responsive solely because it hits upon agreed upon search terms. Should you find yourself in a situation where opposing counsel requests all documents returned from the agreed upon search terms whether or not the documents are relevant to the issues in the litigation, this case should be helpful to combat that claim. However, as a better tactic, parties should avoid agreeing to produce non-relevant documents in the first place. This case would have been simplified had the parties’ discovery agreement specifically stated that the parties would only produce non-privileged and responsive documents.