In Adair v. EQT Production Co. [pdf], 1:10-CV-00037 (W.D. Va. June 29, 2012), U.S. District Court Judge James P. Jones overruled, in part, the defendant’s objections to the magistrate’s order that the defendant run search terms on the email accounts for eight employees and produce all key-word positive emails except those that were sent to or received by the defendant’s counsel.

The plaintiffs in two related cases sought damages and class certification against the defendant, an oil and gas producer, for its alleged failure to pay and account for royalties pertaining to the defendant’s methane gas extraction on the plaintiffs’ land. The defendant objected to the production of documents due to the high cost of production and filed a motion for protective order. The defendant estimated that the cost to process 68.86 gigabytes of email from the eight employees identified in its initial discovery responses would be almost $19,000. The defendant provided the court with three estimates for document review. The first, almost $760,000, was for a document-by-document review for privilege and responsiveness by contract lawyers charging $49 per hour. The second, $436,000, entailed a review using “analytics” to categorize and organize the document review. The third estimate was to conduct a keyword search for privilege documents, review those documents and produce all non-privileged documents (irrespective or responsiveness), which the defendant estimated would cost about $160,000. The defendant argued that the cost of producing emails was unduly burdensome, and the court should either shift the cost of production or suspend the production of ESI pending a determination on class certification.

The magistrate judge denied the defendant’s motion for a protective order, but ordered the parties to confer and agree upon search terms to narrow the scope of the ESI production. The court then ordered that the cost of producing the emails could be satisfactorily mitigated by: (1) applying a date range filter of January 2005 to present; (2) removing emails sent or received by the defendant’s counsel; and (3) producing all emails that were keyword positive without attorney review, subject to the defendant’s right to “clawback” privileged documents under the parties’ stipulated clawback order. The court further ordered the defendant to produce the emails at its own costs. The defendant objected to the magistrate judge’s order. District Court Judge Jones overruled the defendant’s objections, noting that while Federal Rule of Civil Procedure 26 limits discovery to “non-privileged” and “relevant information,” the magistrate’s order achieved both of these goals and substantially reduced the defendant’s cost of production and made full use of the parties’ clawback agreement. However, Judge Jones modified the order to permit the defendant to exclude from production emails that were not only sent or received by counsel, but also emails that were forwarded to the defendant’s counsel or contained the names or counsel. In addition, the judge allowed the defendant to withhold emails containing the terms “privileged,” “privileged and confidential,” “attorney-client communication,” or “attorney work product.” The court also allowed the defendant to conduct a pre-production document review of emails sent or received on or after the date that the first lawsuit was filed.