City of Lincoln v. United States of America et al

Filing 21

ORDER RE DISCOVERY signed by Magistrate Judge Allison Claire on 12/15/2016 informing the parties on discovery procedures in this case. (Reader, L)

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1 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA 2 3 4 5 6 7 8 9 CITY OF LINCOLN, ) ) Plaintiff, ) ) v. ) ) Case No.: 2:16-cv-01164-KJM-AC UNITED STATES OF AMERICA, ) et. al., ) ) Defendants. ) ____________________________________) 10 STIPULATION AND [PROPOSED] ORDER REGARDING DISCOVERY PROCEDURE 11 12 With respect to protecting privileged material and work product, the authentication of 13 historic records, and the production and processing of electronically stored information, Plaintiff 14 City of Lincoln (“City”) and Defendants United States of America, et al. (“United States”) 15 (hereinafter collectively, the “Parties”) have agreed and hereby stipulate to the specific terms set 16 forth below, and respectfully request that the Court ratify and enter an Order as follows: 17 I. Federal Rules of Evidence 502(d) - Protections for Privileged 18 Material and Work Product 19 The Parties shall handle a claim of privilege or protection asserted after production as 20 21 follows: A. The Parties recognize that discovery in this action may require the parties to 22 review and disclose large quantities of documents. For purposes of this Order, the term 23 “document” should be read to include all forms of information, including electronically-stored 24 information. The documents disclosed in this case could include materials subject to privilege or 25 other legally recognized protection (materials that are not subject to discovery). 26 B. Because document-by-document pre-production review would likely impose an 27 undue burden on the Parties’ resources, the Parties seek to invoke the protections afforded by 28 Federal Rule of Evidence 502(d). Stipulation and Order Regarding Discovery Procedure 2:16-CV-01164-KJM-AC Page 1 of 14 1 C. Each party shall examine their files containing documents to be produced and 2 shall screen these documents for privilege or protection. This examination shall be performed 3 with due regard for the likelihood that the files contain privileged or protected documents. 4 Nonetheless, given the large quantities of documents to be screened, the Parties may rely on 5 random sampling or searching rather than document-by-document examination. The Parties 6 recognize that, under these circumstances, it is highly possible that some privileged or protected 7 materials may be produced during discovery. 8 D. If a producing party determines that it has produced what it believes to be a 9 privileged or protected document, it must take the following steps to invoke the appropriate 10 privilege or protection. Within reasonable time of discovering that it has produced what it 11 believes to be a privileged or protected document it will notify all counsel of record notice of the 12 claim of privilege or protection. Furthermore, within thirty (30) days after receiving notice that 13 the receiving party intends to refer to, quote, cite, rely upon, or otherwise use a document 14 containing privileged or protected information, the producing party must give all counsel of 15 record notice of the claim of privilege or protection. The notice must identify the document(s) 16 that is (are) privileged or protected and the date the document(s) was (were) produced. The 17 notice shall also provide information sufficient to meet the requirements of Federal Rule of 18 Civil Procedure 26(b)(5)(A), namely: the information subject to the claim, the author, date, and 19 addressees or recipients of the document (where applicable), the privilege or protection being 20 asserted, and the basis for the claim of privilege or protection. If the producing party claims that 21 only a portion of a document is privileged or protected, in addition to the notice, the producing 22 party shall provide a new copy of the document with the allegedly privileged or protected 23 portions redacted. 24 E. Upon receiving notice of a claim of privilege or protection (as set forth in 25 paragraph 4), the receiving party must promptly return, sequester, or destroy the specified 26 information and any copies it has; must not use or disclose the information until the claim is 27 resolved; and must take reasonable steps to retrieve the information if the retrieving party 28 disclosed it before being notified. See Fed. R. Civ. P. 26(b)(5)(B). If the receiving party does not Stipulation and Order Regarding Discovery Procedure 2:16-CV-01164-KJM-AC Page 2 of 14 1 agree with the privilege claim, the parties must promptly meet and confer in an attempt to 2 resolve the claim. If this conference does not resolve the claim, the receiving party may present 3 the information to the Court by noticed motion, pursuant to the procedures established by Local 4 Rule 251. In doing so, the Parties may file the disputed documents under seal, and file redacted 5 briefing. Any party in possession of the information in dispute must preserve the information 6 until the claim is resolved. Id. 7 F. To the extent that notes or records in any form concerning any privileged or 8 protected information exist (other than those pertaining solely to assertion of the privilege), the 9 portions of any such notes or records regarding the privileged or protected information shall be 10 permanently destroyed, deleted, or redacted if the claim of privilege or protection is upheld. 11 G. Disclosure of any documents or other information that the producing party later 12 claims should not have been disclosed because of any privilege or protection will not be deemed 13 to constitute a waiver of the privilege or protection for purposes of this proceeding, or any other 14 federal or state proceeding. See Fed. R. Evid. 502(d). 15 H. This Order applies to documents and information covered by the attorney-client 16 privilege and the attorney work-product protection, and thus constitutes a controlling order 17 under Federal Rule of Evidence 502(d) with respect to waiver. For purposes of this proceeding, 18 this Order also applies to any other privilege or protection under federal or state law that the 19 parties may properly assert to prevent disclosure of information. 20 I. All receiving parties remain under a good faith obligation to notify any 21 producing party if they identify a document which appears on its face, or in light of facts known 22 to the receiving party, to be potentially privileged or protected. Such notification shall not 23 waive the receiving party’s ability to subsequently challenge any claim of privilege with respect 24 to the identified document. If a receiving party provides such notice, the producing party must 25 follow the steps set forth above in paragraph 4 to claim privilege or protection. 26 II. Authentication of Documents 27 The parties recognize that this case will require the production of historic documents 28 generated and maintained by City and United States. The parties expect that there will be little Stipulation and Order Regarding Discovery Procedure 2:16-CV-01164-KJM-AC Page 3 of 14 1 reason to question the authenticity of such documents. In order to preserve resources, the 2 parties agree that authentication of documents (other than handwritten notes) is presumed. The 3 parties agree that in order to challenge authentication of a document, a party must have “good 4 cause.” See Columbia First Bank, FSB v. United States, 58 Fed. Cl. 333 (Fed. Cl. 2003) (parties 5 may stipulate that authenticity of documents is presumed and require a party to show “good 6 cause” to challenge that presumption – to demonstrate good cause party must demonstrate 7 specific concerns that criteria for authentication is absent). 8 III. 9 10 11 Electronically Stored Information (ESI) The parties have met and conferred regarding the necessity of an up-front agreement on handling ESI and have agreed and stipulate to the following procedures. 1. 12 Definitions: a. “Draft,” when used to describe either an electronic or hard copy 13 document, means “a preliminary version of a document that has been shared by the author with 14 another person (by email, print, or otherwise) or that the author no longer intends to finalize or 15 to share with another person;” 16 b. “Duplicate,” when used to describe either an electronic or hard copy 17 document, means that the document does not show any facial differences, such as the inclusion 18 of highlights, underlining, marginalia, total pages, attachments, markings, revisions, or the 19 inclusion of tracked changes. Differences in system metadata fields, such as date created or 20 modified, that do not affect the face of the document, are not relevant to determining whether 21 the document is a duplicate. 22 c. “Electronically Stored Information or ESI” means information created, 23 manipulated, communicated, stored, and best utilized in digital form, requiring the use of 24 computer hardware and software, as established in Federal Rule of Civil Procedure 34(a). ESI 25 includes, writings, emails, drawings, graphs, charts, photographs, sound and/or video 26 recordings, images, and other data or data compilations. 27 28 d. “Parties” means the parties to this litigation, including their employees and agents. Stipulation and Order Regarding Discovery Procedure 2:16-CV-01164-KJM-AC Page 4 of 14 1 2 3 e. and expect to be carried out. 2. 4 5 6 “Policy” means a regular practice at an entity that managers know about Preservation: a. Preservation Not Required for ESI That Is Not Reasonably Accessible. Except as provided in subparagraph b below, the Parties need not preserve the following categories of ESI for this litigation: 7 i. Data stored in a backup system for the purpose of system recovery 8 or information restoration, including but not limited to, disaster recovery backup tapes, 9 continuity of operations systems, and data or system mirrors or shadows, if such data are 10 routinely deleted or written over in accordance with an established routine system maintenance 11 practice; 12 ii. Voicemail messages; 13 iii. Instant messages, such as messages sent on AOL Instant 14 Messenger or Microsoft Communicator; 15 iv. Text messages, such as cell phone to cell phone SMS messages; 16 v. Electronic mail sent to or from a personal digital assistant 17 (“PDA”), smartphone (e.g., BlackBerry, iPhone), or tablet (e.g., iPad) provided that a copy of 18 such email is routinely saved elsewhere; 19 vi. Other electronic data stored on a PDA, smartphone, or tablet, such 20 as calendar or contact data or notes, provided that a copy of such information is routinely saved 21 elsewhere; 22 vii. Logs of calls made from cellular phones; 23 viii. Deleted computer files, whether fragmented or whole (nothing in 24 this order authorizes the intentional deletion of ESI after the duty arose to preserve such ESI); 25 ix. Data stored in random access memory (“RAM”), cache memory, 26 or in temporary or cache files, including internet history, web browser cache and cookie files, 27 wherever located; 28 x. Data stored on photocopiers, scanners, and fax machines; Stipulation and Order Regarding Discovery Procedure 2:16-CV-01164-KJM-AC Page 5 of 14 1 xi. Server, system, or network logs; 2 xii. Electronic data temporarily stored by scientific equipment or 3 attached devices, provided that the data that is ordinarily preserved as part of a laboratory report 4 is, in fact, preserved in its ordinary location and form; and 5 6 xiii. Data stored on legacy systems that were no longer in use five years before the complaint was filed. 7 b. Notwithstanding subparagraph a. above, if on the date of this Order either 8 Party has a Policy that results in the routine preservation of any of the categories of information 9 identified in subparagraph a, such Party shall continue to preserve such information in 10 accordance with its Policy. 11 c. Nothing in this Order prevents any Party from asserting, in accordance 12 with the Federal Rules of Civil Procedure, that other categories of ESI are not reasonably 13 accessible within the meaning of Rule 26(b)(2)(B). 14 15 3. Use of Documents During Litigation. Notwithstanding any other provision of this Order, the Parties may take any of the following actions with respect to ESI. 16 a. The Parties may continue to work, in the ordinary course of business, on 17 documents that do not meet the definition of Draft in Part I. However, the Parties shall preserve 18 Draft documents for discovery. 19 b. The Parties may move unfiled documents or ESI into files or folders that 20 adhere to an organizational scheme that was created before the complaint was filed in this 21 matter. Nothing in this subparagraph prevents the Parties from implementing an organizational 22 scheme that applies only to documents or ESI created after the complaint was filed in this 23 matter. 24 c. The Parties may delete, overwrite, or wipe ESI from devices that are 25 being replaced, upgraded, reimaged, disposed of, or returned at the end of lease, provided that 26 the potentially relevant ESI is first copied to a new location in a manner that preserves the data, 27 including metadata that may be produced pursuant to section 8, below. 28 Stipulation and Order Regarding Discovery Procedure 2:16-CV-01164-KJM-AC Page 6 of 14 1 d. The Parties may copy data from one device to another, or from one 2 location to another, provided that a copy of the ESI remains accessible in the first location or the 3 new copy is created in a manner that preserves the data, including metadata, which may be 4 produced pursuant to section 8, below. 5 e. The Parties may load loose ESI into an enterprise content management 6 system, provided that: (1) the enterprise content management system captures all of the 7 metadata fields that must be produced under this order and does not convert the format of the 8 ESI in a way that makes it significantly less accessible; or (2) the Parties maintain a copy of the 9 ESI in its native format and make their production from this native file collection upon request 10 of the requesting party, following initial production as provide in section 8, infra. 11 f. The Parties may upgrade, patch, reprogram, or customize software that 12 stores relevant data, even if such actions alter the way data is maintained, stored, or viewed, 13 (provided that the relevant data itself is not altered). 14 g. The Parties may take any of the following actions with respect to data in a 15 database provided that it is part of the routine use of the database: input additional data; access 16 data; update the software running the database; append new data; and modify existing data. 17 18 19 h. The Parties may edit or take down any data on a publicly accessible i. The Parties may add data to an intranet or private website. The Parties internet site. 20 may edit or take down any data on an intranet or private website, provided that a copy of the 21 data is made before the change and is preserved for discovery. 22 j. The Parties may compress, decompress, encrypt, or decrypt data subject 23 to preservation in this matter provided that any data losses during such processes do not result in 24 loss of the metadata required to be produced under this Order or significantly degrade the 25 quality of the data. 26 27 k. The Parties may update social media sites, but may not take affirmative steps to delete relevant data posted before the filing of the Complaint. 28 Stipulation and Order Regarding Discovery Procedure 2:16-CV-01164-KJM-AC Page 7 of 14 1 4. Preservation Required for Certain Subject Matters. The Parties agree to preserve, 2 for the purpose of this litigation, documents and ESI relating to the following subject matters 3 and not exempted from preservation requirements pursuant to the preceding paragraphs of this 4 Part III.: 5 a. All documents (including, for example, emails, reports, photographs, 6 videotapes, and studies) pertaining to the City of Lincoln Landfill (the “Site”); and the Beale Air 7 Force Base Titan 1-A Missile Facility, located at or around 401 Oak Tree Lane, Lincoln, 8 California 65348 (“Missile Site”); 9 b. Correspondence or documents exchanged with any local, state or federal 10 regulator relating to compliance with state law, federal law, or environmental response actions 11 proposed or contemplated at the landfill Site and the Missile Site; 12 c. 13 the Missile Site. 14 5. Documents relating to any permits or approvals for the landfill Site and Preservation Does Not Affect Discoverability or Claims of Privilege. By 15 preserving documents or ESI for the purpose of this litigation, the Parties are not conceding that 16 such material is discoverable, nor are they waiving any claim of privilege. Except as otherwise 17 provided in Paragraphs III.7.c and d, nothing in this Order shall alter the obligations of the 18 Parties to provide a privilege log for material withheld under a claim of privilege. 19 6. Other Preservation Obligations Not Affected. Nothing in this agreement shall 20 affect any other obligations of the Parties to preserve documents or information for other 21 purposes, such as pursuant to court order, administrative order, statute, or in response to other 22 anticipated litigation. 23 24 7. Collection of ESI. a. Search Technology. The Parties will disclose to each other any software 25 or other computer technology used to identify or eliminate potentially responsive documents. If 26 a Party intends to use search terms, it will meet and confer with the other Party to identify 27 mutually agreeable search terms for email messages and other electronically stored information. 28 Stipulation and Order Regarding Discovery Procedure 2:16-CV-01164-KJM-AC Page 8 of 14 1 Nothing in this paragraph obligates any Party to agree to perform an electronic search or to 2 accept the results of an electronic search as a sufficient response to a discovery request. 3 b. Third-Party Data. The Parties will meet and confer before serving any 4 subpoenas in this matter on commercial e-mail providers, such as Google™ or Yahoo™, or any 5 social media companies such as Facebook™ or Twitter™. 6 c. No Discovery of Material Not Required To Be Preserved. Absent a 7 showing of extraordinary circumstances, the Parties shall not seek discovery of items that need 8 not be preserved pursuant to Paragraph III. 2 above. Any discovery request seeking such 9 information must be served separately from discovery requests seeking other materials and must 10 include a statement showing good cause for the discovery of such materials, considering the 11 limitation of Federal Rule 26(b)(2)(C). If any general discovery request is susceptible of a 12 construction that calls for the production of items that need not be preserved pursuant to 13 Paragraph III.2 such items need not be searched for, produced, or identified on a privilege log 14 pursuant to Fed. R. Civ. P. 26(b)(5). 15 d. Privileged Materials Located in the Offices of Counsel. The Parties agree 16 that, in response to general discovery requests, the Parties need not search for and produce, nor 17 create a privilege log for, any privileged or work product material that is located in the offices of 18 the U.S. Department of Justice or outside counsel for Plaintiff, City of Lincoln. The Parties 19 shall not keep discoverable materials in the office covered by this paragraph unless a copy or 20 duplicate of the materials is located elsewhere in the possession, custody, or control of the Party. 21 8. 22 The following procedures apply to producing ESI. Compliance with these procedures 23 24 Production. shall constitute compliance with Federal Rule of Civil Procedure 34(b)(2)(E). a. Paper documents: The provisions of Federal Rule of Civil Procedure 25 34(b)(2)(B) shall govern responses to requests for production. 26 discretion, documents on paper may be produced on paper or they may be scanned and 27 electronically reproduced on CD-ROM, DVD-ROM, or external hard drive. Paper documents At the Producing Party’s 28 Stipulation and Order Regarding Discovery Procedure 2:16-CV-01164-KJM-AC Page 9 of 14 1 that are produced on disc shall be scanned at 300 dpi and produced as PDF files, with one file 2 for each document, or as maintained by the Party in its document repository. 3 b. 4 ESI Files Shall be Produced as Follows. i. Word and WordPerfect documents may be converted to PDF files, 5 with one file for each document. The PDF file name will contain the range of Bates-numbers 6 assigned to the pages contained in the PDF file. The PDF files shall contain extracted text from 7 the document, unless the document contains redactions, in which case OCR text may be 8 provided. If a document produced contains comments or tracked changes that are not part of the 9 ordinary text, the PDF shall be generated based on how the document appears when first opened 10 using view settings contained in the file, and the receiving party shall have the option, after 11 reviewing the produced PDF image, to request the native file. 12 ii. Microsoft PowerPoint files will be processed and produced in the 13 same manner as Word and WordPerfect documents, except that the PDFs shall be generated as 14 full color, half-page or full page slides with one slide per page. Notes shall appear beneath the 15 half-page image of the slide, or appear at the end. 16 iii. E-mail and attachments will be produced as PDF files with one 17 file per e-mail. The PDF file shall contain extracted text from the email, however, if the 18 producing party redacts any part of the e-mail before producing it, OCR text may be provided in 19 place of extracted text. E-mail attachments shall be processed as part of the same email 20 document. 21 iv. Microsoft Excel files and other spreadsheets will be produced in 22 PDF format with Bate-stamps in the title. Native format Excel files shall be available upon 23 request. 24 25 v. Digital photographs will be produced as full color PDF files at their original resolution with Bates numbers branded onto them; 26 vi. Embedded files shall be treated as though they were separate files. 27 vii. The producing party shall produce all ESI on a disc containing 28 folders identifying the department or agency where the document was maintained. Where the Stipulation and Order Regarding Discovery Procedure 2:16-CV-01164-KJM-AC Page 10 of 14 1 document was found within a specific individual’s folder or computer, the document shall be 2 produced in a subfolder containing the identifying information for that individual. 3 produced in PDF format shall include the Bates-number in the document title. 4 viii. ESI Documents maintained on microfiche or microfilm shall be made 5 available to the requesting party for review, or at the producing party’s discretion, be produced 6 either as PDF files or duplicate microfiche or microfilm. 7 d. Before any Party produces any other kinds of electronic data, including 8 data from databases, CAD drawings, GIS data, videos, etc., the Parties will meet and confer to 9 determine a reasonably useable form for the production. 10 e. Except as expressly stated otherwise above, PDFs produced in this matter 11 may be black-and-white images (no shades of gray). However, the receiving party has the 12 option, after reviewing the produced PDFs, to enquire whether the original document contained 13 color and, if so, to request a color image. 14 f. Except as stated above, a Party need not produce the same electronically 15 stored information in more than one form. 16 IV. 17 Miscellaneous provisions. 1. Before filing any motion with the Court regarding electronic discovery or 18 evidence, the Parties will meet and confer in a good faith attempt to resolve such disputes, and 19 comply fully with Local Rule 251(b). 20 2. Costs of Document Production. Each Party shall bear the costs of initially 21 producing its own documents To the extent that any party demands additional ESI searches that 22 may require the producing party to procure software that the producing Party does not currently 23 possess (e.g., harvester programs), the parties shall meet and confer regarding the costs of 24 compliance with this provision. The parties reserve the right to file motions regarding cost 25 sharing or cost shifting of the costs associated with the software necessary to comply with this 26 provision. 27 3. 28 Effect of Order. The Parties’ agreement to this Order is without prejudice to the right of any Party to seek an order from the Court to rescind or amend this Order for good cause Stipulation and Order Regarding Discovery Procedure 2:16-CV-01164-KJM-AC Page 11 of 14 1 shown. Nothing in this Order shall abridge the rights of any person to seek judicial review or to 2 pursue other appropriate judicial action with respect to any discovery ruling made by the Court 3 in this matter. 4 5 Dated: December 14, 2016 6 BROWN & WINTERS 7 /s/ Jeffrey T. Orrell WILLIAM D. BROWN (SBN 125468) JEFFREY T. ORRELL (SBN 237581) Brown & Winters 120 Birmingham Drive Cardiff-by-the-Sea, CA 92007-1737 Tel.: 760-633-4485/Fax: 760-633-4427 Attorneys for Plaintiff CITY OF LINCOLN 8 9 10 11 12 13 14 Dated: December 14, 2016. 15 /s/ Mark A. Rigau (as authorized on December 14, 2016) MARK A. RIGAU (SBN 223610) Senior Trial Counsel U.S. Department of Justice Environment and Natural Resources Division Environmental Defense Section 301 Howard Street, Suite 1050 San Francisco, California 94105 Telephone No.: (415) 744-6487 Facsimile No.: (415) 744-6476 16 17 18 19 20 21 22 23 24 25 26 27 28 /s/ Henry T. Miller (as authorized on December 14, 2016) HENRY T. MILLER (D.C. Bar 411885) Senior Trial Counsel U.S. Department of Justice Civil Division – Torts Branch P.O. Box 340, Ben Franklin Station Washington, D.C. 20044 Telephone: (202) 616-4223 Facsimile No.: (202) 616-4473 Attorney for Defendants the United of America, GSA, and the Department of Air Force Stipulation and Order Regarding Discovery Procedure 2:16-CV-01164-KJM-AC Page 12 of 14 1 Pursuant to the Stipulation, IT IS SO ORDERED this 15th day of December, 2016. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Stipulation and Order Regarding Discovery Procedure 2:16-CV-01164-KJM-AC Page 13 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Stipulation and Order Regarding Discovery Procedure 2:16-CV-01164-KJM-AC Page 14 of 14

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