Campos v. Helmhold et al, No. 2:2022cv01806 - Document 72 (W.D. Wash. 2023)

Court Description: ORDER granting Parties' 69 Stipulated MOTION re Agreement Regarding Discovery of Electronically Stored Information. Signed by Judge Ricardo S. Martinez. (SB)

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Campos v. Helmhold et al Doc. 72 Case 2:22-cv-01806-RSM Document 72 Filed 06/12/23 Page 1 of 10 1 HONORABLE RICARDO S. MARTINEZ 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 NATHAN CAMPOS, Case No. 2:22-cv-01806 RSM 10 Plaintiff, 11 v. AGREEMENT REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION 12 13 BIG FISH GAMES, INC., a Washington corporation, et al., Defendant. 14 STIPULATED MOTION AND ORDER NOTE ON MOTION CALENDAR: JUNE 8, 2023 15 The parties hereby stipulate to the following provisions regarding the discovery of 16 17 electronically stored information (“ESI”) in this matter and move for entry of an order: 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 2. As provided in LCR 26(f), the proportionality standard set forth in Fed. R. Civ. P. 24 26(b)(1) must be applied in each case when formulating a discovery plan. To further the application 25 of the proportionality standard in discovery, requests for production of ESI and related responses 26 should be reasonably targeted, clear, and as specific as possible. AGREEMENT REGARDING DISCOVERY OF ELECTRONCIALLY STORED INFORMATION AND ORDER CASE NUMBER 2:22-CV-01896-RSM- 1 STOEL RIVES LLP ATTORNEYS 600 University Street, Suite 3600, Seattle, WA 98101 Telephone 206.624.0900 Dockets.Justia.com Case 2:22-cv-01806-RSM Document 72 Filed 06/12/23 Page 2 of 10 1 2 3 4 B. ESI Disclosures Within 30 days of entry of this Order, or at a later time if agreed to by the parties, each party shall disclose: 1. Custodians. The five custodians for each game (Big Fish Casino and Jackpot Magic 5 Slots) most likely to have discoverable ESI in their possession, custody, or control. The custodians 6 shall be identified by name, title, connection to the instant litigation, and the type of the information 7 under the custodian’s control. 8 9 10 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 contain 11 discoverable ESI (e.g., third-party email providers, mobile device providers, cloud storage) and, 12 for each such source, the extent to which a party is (or is not) able to preserve information stored 13 in the third-party data source. 14 4. Inaccessible Data. A list of data sources, if any, likely to contain discoverable ESI 15 (by type, date, custodian, electronic system or other criteria sufficient to specifically identify the 16 data source) that a party asserts is not reasonably accessible under Fed. R. Civ. P. 26(b)(2)(B). 17 5. Foreign data privacy laws. Nothing in this Order is intended to prevent either party 18 from complying with the requirements of a foreign country’s data privacy laws, e.g., the European 19 Union’s General Data Protection Regulation (GDPR) (EU) 2016/679. The parties agree to meet 20 and confer before including custodians or data sources subject to such laws in any ESI or other 21 discovery request. 22 23 24 25 26 AGREEMENT REGARDING DISCOVERY OF ELECTRONCIALLY STORED INFORMATION AND ORDER CASE NUMBER 2:22-CV-01896-RSM - 2 STOEL RIVES LLP ATTORNEYS 600 University Street, Suite 3600, Seattle, WA 98101 Telephone 206.624.0900 Case 2:22-cv-01806-RSM Document 72 Filed 06/12/23 Page 3 of 10 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 parties shall timely confer to attempt to reach agreement 6 on appropriate search terms and queries, file type and date restrictions, data sources (including 7 custodians), and other appropriate computer- or technology-aided methodologies, before any such 8 effort is undertaken. The parties shall continue to cooperate in revising the appropriateness of the 9 search methodology. 10 11 a. Prior to running searches: i. The producing party shall disclose the data sources (including 12 custodians), search terms and queries, any file type and date restrictions, and any other 13 methodology that it proposes to use to locate ESI likely to contain responsive and discoverable 14 information. The producing party may provide unique hit counts for each search query. 15 16 17 ii. After disclosure, the parties will engage in a meet and confer process regarding additional terms sought by the non-producing party. iii. The following provisions apply to search terms / queries of the 18 requesting party. Focused terms and queries should be employed; broad terms or queries, such as 19 product and company names, generally should be avoided. A conjunctive combination of multiple 20 words or phrases (e.g., “computer” and “system”) narrows the search and shall count as a single 21 search term. A disjunctive combination of multiple words or phrases (e.g., “computer” or 22 “system”) broadens the search, and thus each word or phrase shall count as a separate search term 23 unless they are variants of the same word. The producing party may identify each search term or 24 query returning overbroad results demonstrating the overbroad results and a counter proposal 25 correcting the overbroad search or query. 26 AGREEMENT REGARDING DISCOVERY OF ELECTRONCIALLY STORED INFORMATION AND ORDER CASE NUMBER 2:22-CV-01896-RSM - 3 STOEL RIVES LLP ATTORNEYS 600 University Street, Suite 3600, Seattle, WA 98101 Telephone 206.624.0900 Case 2:22-cv-01806-RSM Document 72 Filed 06/12/23 Page 4 of 10 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, native 4 files, multi-page TIFFs (with a companion OCR or extracted text file), single-page TIFFs (only 5 with load files for e-discovery software that includes metadata fields identifying natural document 6 breaks and also includes companion OCR and/or extracted text files), and searchable PDF. 7 b. Unless otherwise agreed to by the parties, files that are not easily converted 8 to image format, such as spreadsheet, database, and drawing files, will be produced in native 9 format. 10 c. Each document image file shall be named with a unique number (Bates 11 Number). File names should not be more than twenty characters long or contain spaces. When a 12 text-searchable image file is produced, the producing party must preserve the integrity of the 13 underlying ESI, i.e., the original formatting, the metadata (as noted below) and, where applicable, 14 the revision history. 15 16 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. 17 e. The parties shall produce their information in the following format: single- 18 page images and associated multi-page text files containing extracted text or with appropriate 19 software load files containing all information required by the litigation support system used by the 20 receiving party. 21 4. 22 23 De-duplication. The parties may de-duplicate their ESI production across custodial and non-custodial data sources after disclosure to the requesting party. 5. Email Threading. The parties may use analytics technology to identify email 24 threads and need only produce the unique most inclusive copy and related family members and 25 may exclude lesser inclusive copies. Upon reasonable request, the producing party will produce a 26 less inclusive copy. AGREEMENT REGARDING DISCOVERY OF ELECTRONCIALLY STORED INFORMATION AND ORDER CASE NUMBER 2:22-CV-01896-RSM - 4 STOEL RIVES LLP ATTORNEYS 600 University Street, Suite 3600, Seattle, WA 98101 Telephone 206.624.0900 Case 2:22-cv-01806-RSM Document 72 Filed 06/12/23 Page 5 of 10 1 6. Metadata fields. If the requesting party seeks metadata, the parties agree that only 2 the following metadata fields need be produced, and only to the extent it is reasonably accessible 3 and non-privileged: document type; custodian and duplicate custodians (or storage location if no 4 custodian); author/from; recipient/to, cc and bcc; title/subject; email subject; file name; file size; 5 file extension; original file path; date and time created, sent, modified and/or received; and hash 6 value. The list of metadata type is intended to be flexible and may be changed by agreement of the 7 parties, particularly in light of advances and changes in technology, vendor, and business practices. 8 D. Preservation of ESI 9 The parties acknowledge that they have a common law obligation, as expressed in Fed. R. 10 Civ. P. 37(e), to take reasonable and proportional steps to preserve discoverable information in the 11 party’s possession, custody, or control. With respect to preservation of ESI, the parties agree as 12 follows: 13 1. Absent a showing of good cause by the requesting party, the parties shall not be 14 required to modify the procedures used by them in the ordinary course of business to back-up and 15 archive data; provided, however, that the parties shall preserve all discoverable ESI in their 16 possession, custody, or control. 17 2. The parties will supplement their disclosures in accordance with Fed. R. Civ. P. 18 26(e) with discoverable ESI responsive to a particular discovery request or mandatory disclosure 19 where that data is created after a disclosure or response is made (unless excluded under Sections 20 (D)(3) or (E)(1)-(2)). 21 22 3. Absent a showing of good cause by the requesting party, the following categories of ESI need not be preserved:1 23 24 25 26 1 The omission of any category of ESI from the above-enumerated list shall not be construed to impose on any party an affirmative obligation to preserve ESI beyond those obligations required by law, including the Federal Rules of Civil Procedure. Nor shall such omission require any party to affirmatively implement preservation measures not used in the ordinary course of business and that would impose an undue burden on the preserving party. AGREEMENT REGARDING DISCOVERY OF ELECTRONCIALLY STORED INFORMATION AND ORDER CASE NUMBER 2:22-CV-01896-RSM - 5 STOEL RIVES LLP ATTORNEYS 600 University Street, Suite 3600, Seattle, WA 98101 Telephone 206.624.0900 Case 2:22-cv-01806-RSM Document 72 Filed 06/12/23 Page 6 of 10 1 a. Deleted, slack, fragmented, or other data only accessible by forensics. 2 b. Random access memory (RAM), temporary files, or other ephemeral data that are difficult to preserve without disabling the operating system. 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 last-opened dates (see also Section (E)(5)). e. Back-up data that are duplicative of data that are more accessible elsewhere. 9 f. Server, system or network logs. 10 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 devices), provided that a copy of all such electronic data is automatically saved in real time elsewhere (such as on a server, laptop, desktop computer, or “cloud” storage). 15 i. Text messages. 16 j. Dynamic fields of databases or log files that are not retained in the usual course of business and that would require extraordinary affirmative measures to preserve. k. Automatically saved versions of files (e.g., Microsoft Office documents and emails) that are not retained in the usual course of business and that would require unduly burdensome affirmative measures to preserve. 3 4 5 6 7 8 11 12 13 14 17 18 19 20 21 22 E. Privilege 1. A producing party shall create a privilege log of all documents fully withheld from 23 production on the basis of a privilege or protection, unless otherwise agreed or excepted by this 24 Agreement and Order. Privilege logs shall include a unique identification number for each 25 document and the basis for the claim (attorney-client privileged or work-product protection). For 26 ESI, the privilege log may be generated using available metadata, including author/recipient or AGREEMENT REGARDING DISCOVERY OF ELECTRONCIALLY STORED INFORMATION AND ORDER CASE NUMBER 2:22-CV-01896-RSM - 6 STOEL RIVES LLP ATTORNEYS 600 University Street, Suite 3600, Seattle, WA 98101 Telephone 206.624.0900 Case 2:22-cv-01806-RSM Document 72 Filed 06/12/23 Page 7 of 10 1 to/from/cc/bcc names; the subject matter or title; and date created. Should the available metadata 2 provide insufficient information for the purpose of evaluating the privilege claim asserted, the 3 producing party shall include such additional information as required by the Federal Rules of 4 Civil Procedure. Privilege logs will be produced to all other parties no later than 30 days before 5 the deadline for filing motions related to discovery unless an earlier deadline is agreed to by the 6 parties. 7 8 2. redacted document. 9 10 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. 11 12 Redactions need not be logged so long as the basis for the redaction is clear on the 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). 13 5. Pursuant to Fed. R. Evid. 502(d), the production of any documents, electronically 14 stored information (ESI) or information, whether inadvertent or otherwise, in this proceeding 15 shall not, for the purposes of this proceeding or any other federal or state proceeding, constitute 16 a waiver by the producing party of any privilege applicable to those documents, including the 17 attorney-client privilege, attorney work-product protection, or any other privilege or protection 18 recognized by law. This Order shall be interpreted to provide the maximum protection allowed 19 by Fed. R. Evid. 502(d). The provisions of Fed. R. Evid. 502(b) do not apply. Nothing contained 20 herein is intended to or shall serve to limit a party’s right to conduct a review of documents, ESI 21 or information (including metadata) for relevance, responsiveness and/or segregation of 22 privileged and/or protected information before production. Information produced in discovery 23 that is protected as privileged or work product shall be immediately returned to the producing 24 party. 25 26 6. The entry of this ESI Order does not, on its own, obligate Defendant to produce software code, software components, game logic, operating systems, algorithms or other means AGREEMENT REGARDING DISCOVERY OF ELECTRONCIALLY STORED INFORMATION AND ORDER CASE NUMBER 2:22-CV-01896-RSM - 7 STOEL RIVES LLP ATTORNEYS 600 University Street, Suite 3600, Seattle, WA 98101 Telephone 206.624.0900 Case 2:22-cv-01806-RSM Document 72 Filed 06/12/23 Page 8 of 10 1 for computation or operation of a game or gaming platform, which shall be subject to separate 2 discovery requests and the terms of a separate protocol entered or to be entered in this matter, 3 with all objections reserved. 4 5 6 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. DATED: June 8, 2023 7 8 9 10 /s/ Andrew Ryan Carl Marquardt carl@cjmllc.com Law Office of Carl J. Marquardt, PLLC 1126 34th Avenue, Suite 311 Seattle, WA 98122 Andrew Ryan (pro hac vice) andrew.ryan@thryanlawgroup.com The Ryan Law Group 317 Rosecrans Ave. Manhattan Beach, CA 90266 11 12 13 Attorneys for Plaintiff 14 15 16 17 18 19 20 21 22 23 24 25 26 DATED: June 8, 2023 /s/ Vanessa Soriano Power Vanessa Soriano Power (WSBA No. 30777) vanessa.power@stoel.com Alissa Harris (WSBA No. 59368) ali.harris@stoel.com STOEL RIVES LLP 600 University Street, Suite 3600 Seattle, WA 98101 Emily Johnson Henn (pro hac vice) ehenn@cov.com Lindsey Barnhart (pro hc vice) lbarnhart@cov.com COVINGTON & BURLING LLP 3000 El Camino Real 5 Palo Alto Square Palo Alto, CA 94306 Kevin Hoogstraten (pro hac vice) khoogstraten@cov.com COVINGTON & BURLING LLP AGREEMENT REGARDING DISCOVERY OF ELECTRONCIALLY STORED INFORMATION AND ORDER CASE NUMBER 2:22-CV-01896-RSM - 8 STOEL RIVES LLP ATTORNEYS 600 University Street, Suite 3600, Seattle, WA 98101 Telephone 206.624.0900 Case 2:22-cv-01806-RSM Document 72 Filed 06/12/23 Page 9 of 10 1 1999 Avenue of the Stars, Suite 3500 Los Angeles, CA 90067 2 3 4 Attorneys for Defendant Big Fish Games, Inc. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AGREEMENT REGARDING DISCOVERY OF ELECTRONCIALLY STORED INFORMATION AND ORDER CASE NUMBER 2:22-CV-01896-RSM - 9 STOEL RIVES LLP ATTORNEYS 600 University Street, Suite 3600, Seattle, WA 98101 Telephone 206.624.0900 Case 2:22-cv-01806-RSM Document 72 Filed 06/12/23 Page 10 of 10 1 2 3 4 ORDER Based on the foregoing, IT IS SO ORDERED. DATED this 12th day of June, 2023. 5 6 7 8 A RICARDO S. MARTINEZ UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AGREEMENT REGARDING DISCOVERY OF ELECTRONCIALLY STORED INFORMATION AND ORDER CASE NUMBER 2:22-CV-01896-RSM - 10 STOEL RIVES LLP ATTORNEYS 600 University Street, Suite 3600, Seattle, WA 98101 Telephone 206.624.0900

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