Gee v. Hinrichs et al, No. 3:2023cv05695 - Document 25 (W.D. Wash. 2023)
Court Description: ORDER granting Parties' 23 Stipulated MOTION For Entry of Order Regarding Discovery of Electronically Stored Information. Signed by District Judge Kymberly K. Evanson. (SB)
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Gee v. Hinrichs et al Doc. 25 1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 8 BRENDAN GEE, Plaintiff, 9 10 11 CASE NO. C23-5695-KKE v. ORDER GRANTING AGREEMENT REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION DUANE HINRICHS, JR. et al., Defendants. 12 13 14 15 The parties hereby stipulate to the following provisions regarding the discovery of electronically stored information (“ESI”) in this matter: 16 A. General Principles 17 1. An attorney’s zealous representation of a client is not compromised by conducting 18 discovery in a cooperative manner. The failure of counsel or the parties to litigation to cooperate 19 in facilitating and reasonably limiting discovery requests and responses raises litigation costs and 20 contributes to the risk of sanctions. 21 2. As provided in LCR 26(f), the proportionality standard set forth in Fed. R. Civ. P. 22 26(b)(1) must be applied in each case when formulating a discovery plan. To further the application 23 of the proportionality standard in discovery, requests for production of ESI and related responses 24 ORDER GRANTING AGREEMENT REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION - 1 Dockets.Justia.com 1 should be reasonably targeted, clear, and as specific as possible. This agreement is intended to 2 assist the parties in identifying relevant, responsive information that has been stored electronically 3 and is proportional to the needs of the case. The agreement does not supplant the parties’ 4 obligations to comply with Fed. R. Civ. P. 34. 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 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 the custodian’s 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 contain 14 discoverable ESI (e.g., third-party email providers, mobile device providers, cloud storage) and, 15 for each such source, the extent to which a party is (or is not) able to preserve information stored 16 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 ORDER GRANTING AGREEMENT REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION - 2 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 a. Prior to running searches: i. 7 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. ii. 11 12 After disclosure, the parties will engage in a meet and confer process regarding additional terms sought by the non-producing party. iii. 13 The following provisions apply to search terms / queries of the 14 requesting party. Focused terms and queries should be employed; broad terms or queries, such 15 as product and company names, generally should be avoided. A conjunctive combination of 16 multiple words or phrases (e.g., “computer” and “system”) narrows the search and shall count as 17 a single search term. A disjunctive combination of multiple words or phrases (e.g., “computer” 18 or “system”) broadens the search, and thus each word or phrase shall count as a separate search 19 term unless they are variants of the same word. The producing party may identify each search 20 term or query returning overbroad results demonstrating the overbroad results and a counter 21 proposal correcting the overbroad search or query. 22 23 c. Upon reasonable request, a party shall disclose information relating to network design, the types of databases, database dictionaries, the access control list and security 24 ORDER GRANTING AGREEMENT REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION - 3 1 access logs and rights of individuals to access the system and specific files and applications, the 2 ESI document retention policy, organizational chart for information systems personnel, or the 3 backup and systems recovery routines, including, but not limited to, tape rotation and 4 destruction/overwrite policy. 3. 5 Format. a. 6 ESI will be produced to the requesting party with searchable text, in a 7 format to be decided between the parties. Acceptable formats include, but are not limited to, native 8 files, multi-page TIFFs (with a companion OCR or extracted text file), single-page TIFFs (only 9 with load files for e-discovery software that includes metadata fields identifying natural document 10 breaks and also includes companion OCR and/or extracted text files), and searchable PDF. b. 11 Unless otherwise agreed to by the parties, files that are not easily converted 12 to image format, such as spreadsheet, database, and drawing files, will be produced in native 13 format. c. 14 Each document image file shall be named with a unique number (Bates 15 Number). File names should not be more than twenty characters long or contain spaces. When a 16 text-searchable image file is produced, the producing party must preserve the integrity of the 17 underlying ESI, i.e., the original formatting, the metadata (as noted below) and, where applicable, 18 the revision history. d. 19 20 21 22 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. 4. De-duplication. The parties may de-duplicate their ESI production across custodial and non-custodial data sources after disclosure to the requesting party, and the duplicate custodian 23 24 ORDER GRANTING AGREEMENT REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION - 4 1 information removed during the de-duplication process tracked in a duplicate/other custodian field 2 in the database load file. 3 5. Email Threading. The parties may use analytics technology to identify email 4 threads and need only produce the unique most inclusive copy and related family members and 5 may exclude lesser inclusive copies. Upon reasonable request, the producing party will produce a 6 less inclusive copy. 7 6. Metadata fields. If the requesting party seeks metadata, the parties agree that only 8 the following metadata fields need be produced, and only to the extent it is reasonably accessible 9 and non-privileged: document type; custodian and duplicate custodians (or storage location if no 10 custodian); author/from; recipient/to, cc and bcc; title/subject; email subject; file name; file size; 11 file extension; original file path; date and time created, sent, modified and/or received; and hash 12 value. The list of metadata type is intended to be flexible and may be changed by agreement of the 13 parties, particularly in light of advances and changes in technology, vendor, and business practices. 14 D. 15 The parties acknowledge that they have a common law obligation, as expressed in Fed. R. 16 Civ. P. 37(e), to take reasonable and proportional steps to preserve discoverable information in the 17 party’s possession, custody, or control. With respect to preservation of ESI, the parties agree as 18 follows: 19 1. Preservation of ESI Absent a showing of good cause by the requesting party, the parties shall not be 20 required to modify the procedures used by them in the ordinary course of business to back-up and 21 archive data; provided, however, that the parties shall preserve all discoverable ESI in their 22 possession, custody, or control. 23 24 ORDER GRANTING AGREEMENT REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION - 5 1 2. The parties will supplement their disclosures in accordance with Fed. R. Civ. P. 2 26(e) with discoverable ESI responsive to a particular discovery request or mandatory disclosure 3 where that data is created after a disclosure or response is made (unless excluded under Sections 4 (D)(3) or (E)(1)-(2)). 5 6 3. Absent a showing of good cause by the requesting party, the following categories of ESI need not be preserved: 7 a. Deleted, slack, fragmented, or other data only accessible by forensics. 8 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. 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 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). 9 10 11 12 13 14 15 16 17 18 19 E. Privilege 20 1. A producing party shall create a privilege log of all documents fully withheld from 21 production on the basis of a privilege or protection, unless otherwise agreed or excepted by this 22 Agreement and Order. Privilege logs shall include a unique identification number for each 23 document and the basis for the claim (attorney-client privileged or work-product protection). For 24 ESI, the privilege log may be generated using available metadata, including author/recipient or ORDER GRANTING AGREEMENT REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION - 6 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 Civil 4 Procedure. Privilege logs will be produced to all other parties no later than 30 days after delivering 5 a production unless an earlier deadline is agreed to by the parties. 6 7 8 9 10 11 12 2. Redactions need not be logged so long as the basis for the redaction is clear on the redacted document. 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, electronically 13 stored information (ESI) or information, whether inadvertent or otherwise, in this proceeding shall 14 not, for the purposes of this proceeding or any other federal or state proceeding, constitute a waiver 15 by the producing party of any privilege applicable to those documents, including the attorney- 16 client privilege, attorney work-product protection, or any other privilege or protection recognized 17 by law. This Order shall be interpreted to provide the maximum protection allowed by Fed. R. 18 Evid. 502(d). The provisions of Fed. R. Evid. 502(b) do not apply. Nothing contained herein is 19 intended to or shall serve to limit a party’s right to conduct a review of documents, ESI or 20 information (including metadata) for relevance, responsiveness and/or segregation of privileged 21 and/or protected information before production. 22 protected as privileged or work product shall be immediately returned to the producing party. Information produced in discovery that is 23 24 ORDER GRANTING AGREEMENT REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION - 7 1 DATED: December 20, 2023. 2 Respectfully submitted, 3 /s/ Aaron Elinoff Aaron Elinoff, Esq. (WBSA No. 58949) NOVO LEGAL GROUP, P.L.L.C. 19309 68th Ave S Suite R-102 Kent, WA 98032 T: (303) 335-0250 E: aaron@novo-legal.com 4 5 6 10 /s/ Aaron Slade Aaron Slade, Esq.* NOVO LEGAL GROUP, L.L.C. 4280 Morrison Road Denver, CO 80219 T: (303) 335-0250 E: aslade@novo-legal.com 11 *Appearing pro hac vice 12 Counsel for Plaintiff 13 /s/ John E. Justice John E. Justice, WSBA No. 23042 P.O. Box 11880 Olympia, WA 98508-1880 Tel: (360) 754-3480 Fax: (360) 357-3511 Email: jjustice@lldkb.com 7 8 9 14 15 16 Counsel for Defendants 17 18 19 20 21 22 23 24 ORDER GRANTING AGREEMENT REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION - 8 1 2 ORDER 3 Based on the foregoing, IT IS SO ORDERED. 4 Dated this 22nd day of December, 2023. 5 6 7 A Kymberly K. Evanson United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER GRANTING AGREEMENT REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION - 9
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