United States of America v. LaPant et al

Filing 30

STIPULATION AND ORDER regarding Discovery of Electronically Stored Information signed by District Judge Kimberly J. Mueller on 3/23/2017. (Michel, G.)

1
2
3
4
5
6
7
8
9
10

DOWNEY BRAND LLP
ROBERT P. SORAN
ASHLEY M. BOULTON
621 Capitol Mall, 18th Floor
Sacramento, CA 95814-4731
Telephone: [phone] / Facsimile: [phone]
Attorneys for Defendants
GOOSE POND AG, INC., and FARMLAND MANAGEMENT SERVICES
CANNATA, O’TOOLE, FICKES & ALMAZAN
THERESE Y. CANNATA
KIMBERLY A. ALMAZAN
100 Pine Street, Suite 350
San Francisco, CA 94111
Telephone: [phone] / Facsimile: 415.409.8904
Attorneys for Defendants
ROGER J. LAPANT, JR. and J&J FARMS

11
12
13
14
15
16
17
18
19
20
21

JEFFREY H. WOOD
Acting Assistant Attorney General
ANDREW J. DOYLE
JOHN THOMAS H. DO
United States Department of Justice
Environmental and Natural Resources Division
P.O. Box 7611
Washington, DC 20044
Telephone: [phone] (Doyle), [phone] (Do)
PHILLIP A. TALBERT
United States Attorney
GREGORY T. BRODERICK
Assistant United States Attorney
501 I Street, Suite 10-100
Sacramento, CA 95814
Telephone: [phone]
Attorneys for the UNITED STATES OF AMERICA

22

UNITED STATES DISTRICT COURT

23

EASTERN DISTRICT OF CALIFORNIA

24
25
26
27

UNITED STATES OF AMERICA,
Plaintiff,
v.
ROGER J. LAPANT, JR., et al.,
Defendants.

Case No. 2:16-cv-01498-KJM-DB
STIPULATION REGARDING
DISCOVERY OF ELECTRONICALLY
STORED INFORMATION; ORDER

28

Stipulation re: Discovery of ESI; Order

Case No. 2:16-cv-01498-KJM-DB

1
2
3
4
5

WHEREAS, the Parties have met and conferred and filed a Joint Status Report and
Discovery Plan (ECF No. 22);
WHEREAS, the Parties appeared before the Court at a March 2, 2017 status conference
and received procedural direction (ECF No. 23);
WHEREAS, as set forth in the Joint Status Report and Discovery Plan, the Parties

6

mutually seek to reduce the time, expense and other burdens of discovery of certain

7

electronically stored information and privileged materials, as described further below, and to

8

better define the scope of their obligations with respect to preserving such information and

9

materials; and

10
11

WHEREAS, the Parties enter into this Stipulation with the request that the Court enter it
as an Order,

12

NOW THEREFORE, it is hereby STIPULATED and ORDERED as follows.

13

A.

14
15
16

DISCOVERY OF ELECTRONICALLY STORED INFORMATION
1.

Preservation Not Required for ESI That Is Not Reasonably Accessible.
a.

Except as provided in subparagraph b below, the Parties need not

preserve the following categories of electronically stored information for this litigation:

17

i.

Data stored in a backup system for the purpose of system

18

recovery or information restoration, including but not limited to, disaster recovery backup tapes,

19

continuity of operations systems, and data or system mirrors or shadows, if such data are routinely

20

deleted or written over in accordance with an established routine system maintenance practice;

21
22

ii.

Instant messages, such as messages sent on AOL Instant

Messenger or Microsoft Communicator;
iii.

23

Electronic mail sent to or from a personal digital assistant

24

(“PDA”), smartphone (e.g., BlackBerry, iPhone), or tablet (e.g. iPad) provided that a copy of

25

such email is routinely saved elsewhere;
iv.

26

Other electronic data stored on a PDA, smartphone, or

27

tablet such as calendar or contract data or notes, provided that a copy of such information is

28

routinely saved elsewhere;

Stipulation re: Discovery of ESI; Order

Case No. 2:16-cv-01498-KJM-DB
1

1

v.

Logs of calls made from cellular phones;

2

vi.

Deleted computer files, whether fragmented or whole;

3

vii.

Data stored in random access memory (“RAM”), cache

4

memory, or in temporary or cache files, including internet history, web browser cache and

5

cookie files, wherever located;

6

viii.

7

ix.

Server, system, or network logs;

8

x.

Electronic data temporarily stored by scientific equipment

9
10

Data stored on photocopiers, scanners, and fax machines;

or attached devices, provided that the data that is ordinarily preserved as part of a laboratory
report is, in fact, preserved in its ordinary location and form; and

11

b.

Notwithstanding subparagraph a. above, if on the date of this Joint

12

Status Report and Discovery Plan any Party has a policy that results in the routine preservation

13

of any of the categories of information identified in subparagraph a, such Party shall continue to

14

preserve such information in accordance with its policy.

15

c.

Nothing in this Stipulation and Order prevents any Party from

16

asserting, in accordance with the Federal Rules of Civil Procedure, that other categories of ESI

17

are not reasonably accessible within the meaning of Rule 26(b)(2)(B).

18

2.

No Discovery. Except as provided in paragraph A.3 below and Part B

19

below, the Parties shall not seek discovery of items that need not be preserved pursuant to

20

paragraphs A.1. above or meta-data.
3.

21

No Offering into Evidence without Disclosure. The Parties shall not offer

22

into evidence for any purpose in this litigation any item that need not be preserved pursuant to

23

paragraphs A.1. above or meta-data, unless the Party has disclosed the item pursuant to Rule 26

24

with adequate time to allow other Parties to conduct discovery on the item.

25

B.

DISCOVERY PROCEDURE.

26

The following procedures apply to producing documents or ESI and controls over any

27

prior instructions provided in requests for the production of documents served prior to the date of

28

this Joint Status Report and Discovery Plan. Compliance with these procedures shall constitute

Stipulation re: Discovery of ESI; Order

Case No. 2:16-cv-01498-KJM-DB
2

1
2

compliance with Federal Rule of Civil Procedure 34(b)(2)(e).
1.

The Parties shall serve all discovery requests and responses on all counsel

3

of record at their email addresses as registered with ECF, with a courtesy copy to be served

4

concurrently via U.S. Mail. Further, the Parties propose that all discovery requests be

5

accompanied by a Word version.

6

2.

Documents printed on paper that is 11 x 17 inches or smaller shall be

7

scanned and the files produced on CD-ROM, DVD-ROM, or external hard drive. Documents

8

printed on larger paper may, at the Producing Party’s discretion, be produced on paper.

9

Documents produced on paper must be produced as they are kept in the ordinary course of

10

business or must be organized and labeled to correspond to the categories in the request;

11

alternatively, Documents produced on paper must be organized by custodian and maintained in

12

the order in which they appear in the files of the custodian.

13
14
15

3.

Paper documents that are produced on disc shall be scanned as 300 dpi

PDF files, in color if the original is in color.
4.

Word, WordPerfect, and other word processing files will be converted to

16

searchable PDF files. If the document contains comments or tracked changes that are not part of

17

the ordinary text, the producing Party shall either generate a searchable PDF based on how the

18

document appears when first opened using view settings contained in the file or the producing

19

Party shall produce the native file. If a PDF is produced, the receiving Party shall have the

20

option, after reviewing the produced PDF, to request the native file.

21
22
23

5.

Microsoft PowerPoint files will be produced in searchable PDFs. The

receiving Party may, after reviewing the produced PDFs, request the native files.
6.

E-mail and attachments should be converted to searchable PDFs. E-mail

24

attachments shall be processed as though they were separate documents, and a cross reference

25

file shall include a field in which the producing Party shall identify, for each e-mail, the Bates

26

range of any attachment.

27
28

7.

If the production includes Microsoft Excel files and other spreadsheets,

the producing Party shall either generate searchable PDFs or the native files. If a PDF is

Stipulation re: Discovery of ESI; Order

Case No. 2:16-cv-01498-KJM-DB
3

1

produced, the receiving Party may, after reviewing the spreadsheets, request the native files.

2

8.

Digital photographs will be produced as full color image files at their

3

original resolution or as PDFs. The receiving Party may, after reviewing the photographs, request

4

the native files along with any associated locational information (such as Global Positioning

5

System (“GPS”) data).

6

9.

Before any Party produces any other kinds of electronic data, including

7

data from databases, CAD drawings, GIS data, videos, etc., the Parties will meet and confer to

8

determine a reasonably useable form for the production.

9
10

10.

Except as stated above, a Party need not produce the same ESI in more

11.

“Duplicate,” when used to describe either an electronic or hard copy

than one form.

11
12

document, means that the document does not show at least one facial change, such as the

13

inclusion of highlights, underlining, marginalia, total pages, attachments, markings, revisions, or

14

the inclusion of tracked changes.

15

a.

Deduplication of e-mail. The Parties may use a widely accepted

16

method of deduplication, including comparing the to, from, date, and time fields of e-mails and

17

may only produce one copy from each set of duplicates.

18

b.

Deduplication of ESI other than e-mail. With respect to ESI other

19

than e-mail, the Parties may use a widely accepted method of deduplication, such as using MD5

20

or SHA-1 hash values calculated before the files are collected for discovery and need only

21

produce one copy.

22

C.

STIPULATION TREATED AS BINDING. The Parties agree to treat the

23

foregoing stipulation as controlling pending the Court’s consideration of it.

24

RESPECTFULLY SUBMITTED,

25

DATED: March 9, 2017

DOWNEY BRAND LLP
By: /s/ Robert P. Soran (authorized 03/09/2017)
ROBERT P. SORAN
Attorneys for Defendants GOOSE POND AG, INC.,
and FARMLAND MANAGEMENT SERVICES

26
27
28

Stipulation re: Discovery of ESI; Order

Case No. 2:16-cv-01498-KJM-DB
4

1

CANNATA, O’TOOLE, FICKES & ALMAZAN LLP

2

By: /s/ Kimberly A. Almazan (authorized 03/09/2017)
KIMBERLY A. ALMAZAN
Attorneys for Defendants ROGER J. LAPANT, Jr.,
and J&J FARMS

3
4

PHILLIP A. TALBERT
United States Attorney
By: /s/ Gregory T. Broderick
GREGORY T. BRODERICK
Assistant United States Attorney

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 re: Discovery of ESI; Order

Case No. 2:16-cv-01498-KJM-DB
5

1

ORDER

2

In accordance with the foregoing stipulation and good cause appearing,

3

IT IS SO ORDERED.

4

DATED: March 23, 2017

5
6
UNITED STATES DISTRICT JUDGE

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Stipulation re: Discovery of ESI; Order

Case No. 2:16-cv-01498-KJM-DB
6