Are Documents Containing Agreed-Upon Keywords Responsive Per Se?

“When requesting parties hammer out agreements on search terms to be run against the producing party’s ESI, sometimes the requesting party’s expectation is that any item responsive to the agreed-upon keywords (that is, any item that’s “hit”) must be produced unless withheld as privileged. Put another way, the requesting party believes that, by agreeing to the use of a set of keywords as a proxy for attorney review of the entire potentially-responsive collection, and thereby relieving the producing party of the broader obligation to look at everything that may be responsive, those keywords define responsiveness per se, requiring production if not privileged… Perhaps; but, there’s sufficient ambiguity surrounding the issue to prompt prudent counsel to address the point explicitly when negotiating keyword search protocols, and especially when drafting agreed orders memorializing search protocols.”