United Brotherhood of Carpenters and Joiners of America et al v. Cole et al, No. 3:2022cv05082 - Document 33 (W.D. Wash. 2022)
Court Description: ORDER granting Parties' 32 Stipulated MOTION Regarding Discovery of Electronically Stored Information. Signed by Judge John H. Chun. (SB)
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United Brotherhood of Carpenters and Joiners of America et al v. Cole et al Doc. 33 Case 3:22-cv-05082-JHC Document 33 Filed 05/11/22 Page 1 of 9 1 THE HONORABLE JOHN H. CHUN 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, an unincorporated association, and PACIFIC NORTHWEST REGIONAL COUNCIL OF CARPENTERS, an unincorporated association, 9 10 11 12 CASE NO. 3:22-cv-05082 JHC AGREEMENT REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION AND ORDER Plaintiffs, 13 v. 14 KRISTINE COLE, an individual; and KEN ERVIN, an individual, 15 16 Defendants. The parties hereby agree and stipulate to the following provisions regarding the discovery 17 18 of electronically stored information (“ESI”) in this matter: 19 A. General Principles 20 1. An attorney’s zealous representation of a client is not compromised by conducting 21 discovery in a cooperative manner. The failure of counsel or the parties to litigation to cooperate 22 in facilitating and reasonably limiting discovery requests and responses raises litigation costs and 23 contributes to the risk of sanctions. 24 25 AGREEMENT REGARDING DISCOVERY OF ELECTRONICALLY 26 STORED INFORMATION AND ORDER (Case No. 3:22-cv-05082-JHC) PAGE - 1 Dockets.Justia.com Case 3:22-cv-05082-JHC Document 33 Filed 05/11/22 Page 2 of 9 1 2. As provided in LCR 26(f), the proportionality standard set forth in Fed. R. Civ. 2 P. 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 ESI Disclosures 7 party shall disclose: 8 1. Custodians. The five custodians most likely to have discoverable ESI in their 9 possession, custody, or control. The custodians shall be identified by name, title, connection to 10 the instant litigation, and the type of the information under the custodian’s control. 11 2. Non-Custodial Data Sources. A list of non-custodial data sources (e.g., shared 12 drives, servers), if any, likely to contain discoverable ESI. 13 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) 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 C. ESI Discovery Procedures 21 1. On-site inspection of electronic media. Such an inspection shall not be required 22 absent a demonstration by the requesting party of specific need and good cause or by agreement 23 of the parties. 24 25 AGREEMENT REGARDING DISCOVERY OF ELECTRONICALLY 26 STORED INFORMATION AND ORDER (Case No. 3:22-cv-05082-JHC) PAGE - 2 Case 3:22-cv-05082-JHC Document 33 Filed 05/11/22 Page 3 of 9 1 2. Search methodology. The parties shall timely confer to attempt to reach agreement 2 on appropriate search terms and queries, file type and date restrictions, data sources (including 3 custodians), and other appropriate computer- or technology-aided methodologies, before any such 4 effort is undertaken. The parties shall continue to cooperate in revising the appropriateness of the 5 search methodology. 6 7 a. Prior to running searches: i. The producing party shall disclose the data sources (including 8 custodians), search terms and queries, any file type and date restrictions, and any other 9 methodology that it proposes to use to locate ESI likely to contain responsive and discoverable 10 information. The producing party may provide unique hit counts for each search query. 11 ii. The requesting party is entitled to, within 14 days of the producing 12 party’s disclosure, add no more than 5 search terms or queries to those disclosed by the producing 13 party absent a showing of good cause or agreement of the parties. 14 iii. The following provisions apply to search terms / queries of the 15 requesting party. Focused terms and queries should be employed; broad terms or queries, such as 16 product and company names, generally should be avoided. A conjunctive combination of multiple 17 words or phrases (e.g., “computer” and “system”) narrows the search and shall count as a single 18 search term. A disjunctive combination of multiple words or phrases (e.g., “computer” or 19 “system”) broadens the search, and thus each word or phrase shall count as a separate search term 20 unless they are variants of the same word. The producing party may identify each search term or 21 query returning overbroad results demonstrating the overbroad results and a counter proposal 22 correcting the overbroad search or query. A search that returns more than 250 megabytes of data, 23 24 25 AGREEMENT REGARDING DISCOVERY OF ELECTRONICALLY 26 STORED INFORMATION AND ORDER (Case No. 3:22-cv-05082-JHC) PAGE - 3 Case 3:22-cv-05082-JHC Document 33 Filed 05/11/22 Page 4 of 9 1 excluding Microsoft PowerPoint files, audio files, and similarly large file types, or 400 unique 2 documents, excluding families, is presumed to be overbroad. 3 b. After production: Within 21 days of the producing party notifying the 4 requesting party that it has substantially completed the production of documents responsive to a 5 request, the requesting party may request no more than 3 additional search terms or queries. The 6 immediately preceding section (Section C(2)(a)(iii)) applies. 7 c. Upon reasonable request, a party shall disclose information relating to 8 network design, the types of databases, database dictionaries, the access control list and security 9 access logs and rights of individuals to access the system and specific files and applications, the 10 ESI document retention policy, organizational chart for information systems personnel, or the 11 backup and systems recovery routines, including, but not limited to, tape rotation and 12 destruction/overwrite policy. 13 3. 14 Format. a. ESI will be produced to the requesting party with searchable text, in a 15 format to be decided between the parties. Acceptable formats include, but are not limited to, native 16 files, and single-page TIFFs (only with load files for e-discovery software that includes metadata 17 fields identifying natural document breaks and also includes companion OCR and/or extracted 18 text files). 19 b. Unless otherwise agreed to by the parties, files that are not easily converted 20 to image format, such as spreadsheet, database, and drawing files, will be produced in native 21 format. 22 c. Each document image file shall be named with a unique number (Bates 23 Number). File names should not be more than twenty characters long or contain spaces. When a 24 25 AGREEMENT REGARDING DISCOVERY OF ELECTRONICALLY 26 STORED INFORMATION AND ORDER (Case No. 3:22-cv-05082-JHC) PAGE - 4 Case 3:22-cv-05082-JHC Document 33 Filed 05/11/22 Page 5 of 9 1 text-searchable image file is produced, the producing party must preserve the integrity of the 2 underlying ESI, i.e., the original formatting, the metadata (as noted below) and, where applicable, 3 the revision history. 4 d. If a document is more than one page, the unitization of the document and 5 any attachments and/or affixed notes shall be maintained as they existed in the original document. 6 4. De-duplication. The parties may de-duplicate their ESI production across custodial 7 and non-custodial data sources after disclosure to the requesting party, and the duplicate custodian 8 information removed during the de-duplication process may be tracked in a duplicate/other 9 custodian field in the database load file. 10 5. Email Threading. The parties may use analytics technology to identify email 11 threads and need only produce the unique most inclusive copy and related family members and 12 may exclude lesser inclusive copies. Upon reasonable request, the producing party will produce 13 a less inclusive copy. 14 6. Metadata fields. If the requesting party seeks metadata, the parties agree that only 15 the following metadata fields need be produced, and only to the extent it is reasonably accessible 16 and non-privileged: document type; custodian and duplicate custodians (or storage location if no 17 custodian); author/from; recipient/to, cc and bcc; title/subject; email subject; file name; file size; 18 file extension; original file path; date and time created, sent, modified and/or received; and hash 19 value. The list of metadata type is intended to be flexible and may be changed by agreement of 20 the parties, particularly in light of advances and changes in technology, vendor, and business 21 practices. 22 23 24 25 AGREEMENT REGARDING DISCOVERY OF ELECTRONICALLY 26 STORED INFORMATION AND ORDER (Case No. 3:22-cv-05082-JHC) PAGE - 5 Case 3:22-cv-05082-JHC Document 33 Filed 05/11/22 Page 6 of 9 1 D. Preservation of ESI 2 The parties acknowledge that they have a common law obligation, as expressed in Fed. R. 3 Civ. P. 37(e), to take reasonable and proportional steps to preserve discoverable information in 4 the party’s possession, custody, or control. With respect to preservation of ESI, the parties agree 5 as follows: 6 1. Absent a showing of good cause by the requesting party, the parties shall not be 7 required to modify the procedures used by them in the ordinary course of business to back-up and 8 archive data; provided, however, that the parties shall preserve all discoverable ESI in their 9 possession, custody, or control. 10 2. The parties will supplement their disclosures in accordance with Fed. R. Civ. 11 P. 26(e) with discoverable ESI responsive to a particular discovery request or mandatory 12 disclosure where that data is created after a disclosure or response is made (unless excluded under 13 Sections (D)(3) or (E)(1)-(2)). 14 3. Absent a showing of good cause by the requesting party, the following categories 15 of ESI need not be preserved: 16 a. Deleted, slack, fragmented, or other data only accessible by forensics. 17 b. Random access memory (RAM), temporary files, or other ephemeral data 18 19 that are difficult to preserve without disabling the operating system. c. 20 21 cookies, and the like. d. 22 23 On-line access data such as temporary internet files, history, cache, Data in metadata fields that are frequently updated automatically, such as last-opened dates (see also Section (E)(5)). e. Back-up data that are duplicative of data that are more accessible 24 25 AGREEMENT REGARDING DISCOVERY OF ELECTRONICALLY 26 STORED INFORMATION AND ORDER (Case No. 3:22-cv-05082-JHC) PAGE - 6 Case 3:22-cv-05082-JHC Document 33 Filed 05/11/22 Page 7 of 9 1 elsewhere. 2 f. Server, system or network logs. 3 g. Data remaining from systems no longer in use that is unintelligible on the 4 systems in use. 5 E. Privilege 6 1. A producing party shall create a privilege log of all documents fully withheld from 7 production on the basis of a privilege or protection, unless otherwise agreed or excepted by this 8 Agreement and Order. Privilege logs shall include a unique identification number for each 9 document and the basis for the claim (attorney-client privileged or work-product protection). For 10 ESI, the privilege log may be generated using available metadata, including author/recipient or 11 to/from/cc/bcc names; the subject matter or title; and date created. Should the available metadata 12 provide insufficient information for the purpose of evaluating the privilege claim asserted, the 13 producing party shall include such additional information as required by the Federal Rules of 14 Civil Procedure. Privilege logs will be produced to all other parties no later than 30 days after 15 delivering a production unless an earlier deadline is agreed to by the parties. 16 2. Redactions need not be logged so long as the basis for the redaction is clear on the 17 redacted document. 18 3. With respect to privileged or work-product information generated after the filing 19 of the complaint, the parties are not required to include any such information in privilege logs. 20 4. Activities undertaken in compliance with the duty to preserve information are 21 protected from disclosure and discovery under Fed. R. Civ. P. 26(b)(3)(A) and (B). 22 5. Pursuant to Fed. R. Evid. 502(d), the production of any documents in this 23 proceeding shall not, for the purposes of this proceeding or any other federal or state proceeding, 24 25 AGREEMENT REGARDING DISCOVERY OF ELECTRONICALLY 26 STORED INFORMATION AND ORDER (Case No. 3:22-cv-05082-JHC) PAGE - 7 Case 3:22-cv-05082-JHC Document 33 Filed 05/11/22 Page 8 of 9 1 constitute a waiver by the producing party of any privilege applicable to those documents, 2 including the attorney-client privilege, attorney work-product protection, or any other privilege 3 or protection recognized by law. Information produced in discovery that is protected as privileged 4 or work product shall be immediately returned to the producing party, and its production shall not 5 constitute a waiver of such protection. 6 7 DATED: May 10, 2022 SHANLEY, A Professional Corporation 8 By: 11 /s/ Daniel M. Shanley Daniel M. Shanley Attorney for Plaintiffs United Brotherhood of Carpenters and Joiners of America and Pacific Northwest Regional Council of Carpenters 12 WILLIAMS & CONNOLLY, LLP 9 10 13 By: 16 /s/ R. Kennon Poteat III R. Kennon Poteat III Kaitlin J. Beach Attorney for Plaintiffs United Brotherhood of Carpenters and Joiners of America and Pacific Northwest Regional Council of Carpenters 17 YOUNGLOVE & COKER, P.L.L.C. 14 15 18 By: 19 /s/ Edward Earl Younglove III Edward Earl Younglove III Attorney for Defendant Kristine Cole 20 VANGUARD LAW 21 By: 22 /s/ Spencer Nathan Thal Spencer Nathan Thal Attorney for Defendant Ken Ervin 23 24 25 AGREEMENT REGARDING DISCOVERY OF ELECTRONICALLY 26 STORED INFORMATION AND ORDER (Case No. 3:22-cv-05082-JHC) PAGE - 8 Case 3:22-cv-05082-JHC Document 33 Filed 05/11/22 Page 9 of 9 1 Presented by: /s/ Daniel M. Shanley /s/ R. Kennon Poteat III 2 /s/ Edward Earl Younglove III /s/ Spencer Nathan Thal 3 4 5 ORDER Based on the foregoing, IT IS SO ORDERED. 6 Dated this 11th day of May, 2022. 7 A The Honorable John H. Chun UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 AGREEMENT REGARDING DISCOVERY OF ELECTRONICALLY 26 STORED INFORMATION AND ORDER (Case No. 3:22-cv-05082-JHC) PAGE - 9
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