Flooring Associates Inc v. Design Manufacturing International LLC et al, No. 2:2020cv00057 - Document 27 (W.D. Wash. 2020)
Court Description: ORDER granting Parties' 25 Stipulated Agreement Regarding Electronically Stored Information. Signed by Judge J Richard Creatura. (TH)
Download PDF
<![CDATA[
Flooring Associates Inc v. Design Manufacturing International LLC et al Doc. 27 Case 2:20-cv-00057-JCC-JRC Document 27 Filed 08/14/20 Page 1 of 9 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 FLOORING ASSOCIATES, INC., Plaintiff, 11 v. 12 DESIGN MANUFACTURING INTERNATIONAL, LLC., et al., 13 CASE NO. 2:20-cv-00057-JCC-JRC ORDER GRANTING STIPULATED AGREEMENT REGARDING ELECTRONICALLY STORED INFORMATION 14 Defendants. 15 16 The parties hereby stipulate to the following provisions regarding the discovery of 17 electronically stored information (“ESI”) in this matter: 18 A. 19 General Principles 1. An attorney’s zealous representation of a client is not compromised by conducting 20 discovery in a cooperative manner. The failure of counsel or the parties to litigation to cooperate 21 in facilitating and reasonably limiting discovery requests and responses raises litigation costs and 22 contributes to the risk of sanctions. 23 24 ORDER GRANTING STIPULATED AGREEMENT REGARDING ELECTRONICALLY STORED INFORMATION - 1 Dockets.Justia.com Case 2:20-cv-00057-JCC-JRC Document 27 Filed 08/14/20 Page 2 of 9 1 2. As provided in LCR 26(f), the proportionality standard set forth in Fed. R. Civ. P. 2 26(b)(1) must be applied in each case when formulating a discovery plan. To further the 3 application of the proportionality standard in discovery, requests for production of ESI and related 4 responses should be reasonably targeted, clear, and as specific as possible. 5 B. 6 Within 30 days of entry of this Order, or at a later time if agreed to by the parties, each 7 8 9 10 11 12 13 ESI Disclosures party shall disclose: 1. Custodians. The five custodians most likely to have discoverable ESI in their possession, custody, or control. The custodians shall be identified by name, title, connection to the instant litigation, and the type of the information under his/her control. 2. Non-custodial Data Sources. A list of non-custodial data sources (e.g., shared drives, servers), if any, likely to contain discoverable ESI. 3. Third-Party Data Sources. A list of third-party data sources, if any, likely to 14 contain discoverable ESI (e.g., third-party email providers, mobile device providers, cloud 15 storage, etc.) and, for each such source, the extent to which a party is (or is not) able to preserve 16 information stored in the third-party data source. 17 4. Inaccessible Data. A list of data sources, if any, likely to contain discoverable ESI 18 (by type, date, custodian, electronic system or other criteria sufficient to specifically identify the 19 data source) that a party asserts is not reasonably accessible under Fed. R. Civ. P. 26(b)(2)(B). 20 Section (D)(3) below sets forth data sources and ESI which are not required to be preserved by 21 the parties. Those data sources and ESI do not need to be included on this list. 22 23 24 ORDER GRANTING STIPULATED AGREEMENT REGARDING ELECTRONICALLY STORED INFORMATION - 2 Case 2:20-cv-00057-JCC-JRC Document 27 Filed 08/14/20 Page 3 of 9 1 2 C. ESI Discovery Procedures 1. On-site inspection of electronic media. Such an inspection shall not be required 3 absent a demonstration by the requesting party of specific need and good cause or by agreement 4 of the parties. 5 2. Search methodology. The Court presumes that the use of search terms and queries, 6 file type and date restrictions, and technology-assisted review will be reasonably necessary to 7 locate or filter ESI likely to contain discoverable information. The timelines and search related 8 numbers in this section may be sufficient in certain cases, but not in others. The parties are 9 expected to meet and confer to establish the appropriate timing and numbers based on the 10 complexity, proportionality and nature of the case. The parties shall timely confer to attempt to 11 reach agreement on appropriate search terms and queries, file type and date restrictions, data 12 sources (including custodians), and other appropriate computer- or technology-aided 13 methodologies, before any such effort is undertaken. The parties shall continue to cooperate in 14 revising the appropriateness of the search methodology. 15 16 a. Prior to running searches: i. The producing party shall disclose the data sources (including 17 custodians), search terms and queries, any file type and date restrictions, and any other 18 methodology that it proposes to use to locate ESI likely to contain responsive and discoverable 19 information. The producing party may provide unique hit counts for each search query. 20 ii. The requesting party is entitled to, within 14 days of the producing 21 party’s disclosure, add no more than 10 search terms or queries to those disclosed by the 22 producing party absent a showing of good cause or agreement of the parties. 23 24 ORDER GRANTING STIPULATED AGREEMENT REGARDING ELECTRONICALLY STORED INFORMATION - 3 Case 2:20-cv-00057-JCC-JRC Document 27 Filed 08/14/20 Page 4 of 9 1 iii. The following provisions apply to search terms / queries of the 2 requesting party. Focused terms and queries should be employed; broad terms or queries, such 3 as product and company names, generally should be avoided. A conjunctive combination of 4 multiple words or phrases (e.g., “computer” and “system”) narrows the search and shall count as 5 a single search term. A disjunctive combination of multiple words or phrases (e.g., “computer” 6 or “system”) broadens the search, and thus each word or phrase shall count as a separate search 7 term unless they are variants of the same word. The producing party may identify each search 8 term or query returning overbroad results demonstrating the overbroad results and a counter 9 proposal correcting the overbroad search or query. A search that returns more than [alternative 10 1] [(250) megabytes of data, excluding Microsoft PowerPoint files, audio files, and similarly large 11 file types] [alternative 2] [(400) unique documents, excluding families], is presumed to be 12 overbroad. 13 b. After production: Within 21 days of the producing party notifying the 14 receiving party that it has substantially completed the production of documents responsive to a 15 request, the responding party may request no more than 10 additional search terms or queries. 16 The immediately preceding section (Section C(2)(a)(iii)) applies. 17 c. Upon reasonable request, a party shall disclose information relating to 18 network design, the types of databases, database dictionaries, the access control list and security 19 access logs and rights of individuals to access the system and specific files and applications, the 20 ESI document retention policy, organizational chart for information systems personnel, or the 21 backup and systems recovery routines, including, but not limited to, tape rotation and 22 destruction/overwrite policy. 23 24 ORDER GRANTING STIPULATED AGREEMENT REGARDING ELECTRONICALLY STORED INFORMATION - 4 Case 2:20-cv-00057-JCC-JRC Document 27 Filed 08/14/20 Page 5 of 9 1 3. 2 Format. a. ESI will be produced to the requesting party with searchable text, in a 3 format to be decided between the parties. Acceptable formats include, but are not limited to, 4 native files, multi-page TIFFs (with a companion OCR or extracted text file), single-page TIFFs 5 (only with load files for e-discovery software that includes metadata fields identifying natural 6 document breaks and also includes companion OCR and/or extracted text files), and searchable 7 PDF. 8 9 10 11 b. Unless otherwise agreed to by the parties, files that are not easily converted to image format, such as spreadsheet, database, and drawing files, will be produced in native format. c. Each document image file shall be named with a unique number (Bates 12 Number). File names should not be more than twenty characters long or contain spaces. When a 13 text-searchable image file is produced, the producing party must preserve the integrity of the 14 underlying ESI, i.e., the original formatting, the metadata (as noted below) and, where applicable, 15 the revision history. 16 17 18 d. If a document is more than one page, the unitization of the document and any attachments and/or affixed notes shall be maintained as they existed in the original document. e. The parties shall produce their information in the following format: single- 19 page images and associated multi-page text files containing extracted text or with appropriate 20 software load files containing all information required by the litigation support system used by 21 the receiving party. 22 23 f. The full text of each electronic document shall be extracted (“Extracted Text”) and produced in a text file. The Extracted Text shall be provided in searchable ASCII text 24 ORDER GRANTING STIPULATED AGREEMENT REGARDING ELECTRONICALLY STORED INFORMATION - 5 Case 2:20-cv-00057-JCC-JRC Document 27 Filed 08/14/20 Page 6 of 9 1 format (or Unicode text format if the text is in a foreign language) and shall be named with a 2 unique Bates Number (e.g., the unique Bates Number of the first page of the corresponding 3 production version of the document followed by its file extension). 4 4. De-duplication. The parties may de-duplicate their ESI production across 5 custodial and non-custodial data sources after disclosure to the requesting party, and the duplicate 6 custodian information removed during the de-duplication process tracked in a duplicate/other 7 custodian field in the database load file. 8 5. Email Threading. The parties may use analytics technology to identify email 9 threads and need only produce the unique most inclusive copy and related family members and 10 may exclude lesser inclusive copies. Upon reasonable request, the producing party will produce 11 a less inclusive copy. 12 6. Metadata fields. If the requesting party seeks metadata, the parties agree that only 13 the following metadata fields need be produced, and only to the extent it is reasonably accessible 14 and non-privileged: document type; custodian and duplicate custodians (or storage location if no 15 custodian); author/from; recipient/to, cc and bcc; title/subject; email subject; file name; file size; 16 file extension; original file path; date and time created, sent, modified and/or received; and hash 17 value. The list of metadata type is intended to be flexible and may be changed by agreement of 18 the parties, particularly in light of advances and changes in technology, vendor, and business 19 practices. 20 7. Hard-Copy Documents. If the parties elect to produce hard-copy documents in an 21 electronic format, the production of hard-copy documents will include a cross-reference file that 22 indicates document breaks and sets forth the custodian or custodian/location associated with each 23 produced document. Hard-copy documents will be scanned using Optical Character Recognition 24 ORDER GRANTING STIPULATED AGREEMENT REGARDING ELECTRONICALLY STORED INFORMATION - 6 Case 2:20-cv-00057-JCC-JRC Document 27 Filed 08/14/20 Page 7 of 9 1 technology and searchable ASCII text files will be produced (or Unicode text format if the text is 2 in a foreign language), unless the producing party can show that the cost would outweigh the 3 usefulness of scanning (for example, when the condition of the paper is not conducive to scanning 4 and will not result in accurate or reasonably useable/searchable ESI). Each file will be named 5 with a unique Bates Number (e.g., the unique Bates Number of the first page of the corresponding 6 production version of the document followed by its file extension). 7 D. Preservation of ESI 8 The parties acknowledge that they have a common law obligation, as expressed in Fed. R. 9 Civ. P. 37(e), to take reasonable and proportional steps to preserve discoverable information in 10 the party’s possession, custody, or control. With respect to preservation of ESI, the parties agree 11 as follows: 12 1. Absent a showing of good cause by the requesting party, the parties shall not be 13 required to modify the procedures used by them in the ordinary course of business to back-up and 14 archive data; provided, however, that the parties shall preserve all discoverable ESI in their 15 possession, custody, or control. 16 2. All parties shall supplement their disclosures in accordance with Fed. R. Civ. P. 17 26(e) with discoverable ESI responsive to a particular discovery request or mandatory disclosure 18 where that data is created after a disclosure or response is made (unless excluded under Sections 19 (D)(3) or (E)(1)-(2) below). 20 21 3. Absent a showing of good cause by the requesting party, the following categories of ESI need not be preserved: 22 a. Deleted, slack, fragmented, or other data only accessible by forensics. 23 b. Random access memory (RAM), temporary files, or other ephemeral data that are difficult to preserve without disabling the operating system. 24 ORDER GRANTING STIPULATED AGREEMENT REGARDING ELECTRONICALLY STORED INFORMATION - 7 Case 2:20-cv-00057-JCC-JRC Document 27 Filed 08/14/20 Page 8 of 9 1 c. On-line access data such as temporary internet files, history, cache, cookies, and the like. d. Data in metadata fields that are frequently updated automatically, such as lastopened dates (see also Section (E)(5)). 4 e. Back-up data that are duplicative of data that are more accessible elsewhere. 5 f. Server, system or network logs. g. Data remaining from systems no longer in use that is unintelligible on the systems in use. h. Electronic data (e.g., email, calendars, contact data, and notes) sent to or from mobile devices (e.g., iPhone, iPad, Android, and Blackberry devices), provided that a copy of all such electronic data is routinely saved elsewhere (such as on a server, laptop, desktop computer, or “cloud” storage). 2 3 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 E. Privilege 1. A producing party shall create a privilege log of all documents fully withheld from production on the basis of a privilege or protection, unless otherwise agreed or excepted by this Agreement and Order. Privilege logs shall include a unique identification number for each document and the basis for the claim (attorney-client privileged or work-product protection). For ESI, the privilege log may be generated using available metadata, including author/recipient or to/from/cc/bcc names; the subject matter or title; and date created. Should the available metadata provide insufficient information for the purpose of evaluating the privilege claim asserted, the producing party shall include such additional information as required by the Federal Rules of Civil Procedure. Privilege logs will be produced to all other parties [alternative 1] [no later than 30 days after delivering a production] [alternative 2] [no later than 30 days before the deadline for filing motions related to discovery] unless an earlier deadline is agreed to by the parties. 2. Redactions need not be logged so long as the basis for the redaction is clear on the redacted document. 23 24 ORDER GRANTING STIPULATED AGREEMENT REGARDING ELECTRONICALLY STORED INFORMATION - 8 Case 2:20-cv-00057-JCC-JRC Document 27 Filed 08/14/20 Page 9 of 9 1 2 3 4 5 3. With respect to privileged or work-product information generated after the filing of the complaint, parties are not required to include any such information in privilege logs. 4. Activities undertaken in compliance with the duty to preserve information are protected from disclosure and discovery under Fed. R. Civ. P. 26(b)(3)(A) and (B). 5. Pursuant to Fed. R. Evid. 502(d), the production of any documents in this 6 proceeding shall not, for the purposes of this proceeding or any other federal or state proceeding, 7 constitute a waiver by the producing party of any privilege applicable to those documents, 8 including the attorney-client privilege, attorney work-product protection, or any other privilege 9 or protection recognized by law. Information produced in discovery that is protected as privileged 10 or work product shall be immediately returned to the producing party, and its production shall not 11 constitute a waiver of such protection. 12 DATED this 12th day of August, 2020. 13 LAW OFFICE OF JOHN RAZOR SELMAN BREITMAN LLP 14 /s John S. Razor (Signed by Eileen I. McKillop With Authorization) John S. Razor, WSBA #37352 P.O. Box 7138 Salem, OR 97303 (503) 362-5600 E-mail: john@johnrazor.com Attorney for Plaintiff /s Eileen I. McKillop Eileen I. McKillop, WSBA #21602 600 University Street, Suite 1800 Seattle, WA 98101 (206) 812-0222 E-mail: emckillop@selmanlaw.com Attorneys for Defendants 15 16 17 18 19 ORDER 20 Based on the foregoing, IT IS SO ORDERED. 21 Dated this 14th day of August, 2020. A 22 23 J. Richard Creatura United States Magistrate Judge 24 ORDER GRANTING STIPULATED AGREEMENT REGARDING ELECTRONICALLY STORED INFORMATION - 9
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
