Edwards et al v. National Milk Producers Federation et al

Filing 146

ORDER GRANTING 142 STIPULATION AND PRESERVATION ORDER. Signed by Judge JEFFREY S. WHITE on 2/14/13. (jjoS, COURT STAFF) (Filed on 2/14/2013)

Case3:11-cv-04766-JSW Document142 Filed02/12/13 Page1 of 9

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STEVE W. BERMAN (admitted pro hac vice)
GEORGE W. SAMPSON (admitted pro hac vice)
CRAIG R. SPIEGEL (SBN 122000)
HAGENS BERMAN SOBOL SHAPIRO LLP
1918 8th Avenue, Suite 3300
Seattle, WA 98101
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
-andELAINE T. BYSZEWSKI (SBN 222304)
HAGENS BERMAN SOBOL SHAPIRO LLP
301 North Lake Avenue, Suite 203
Pasadena, California 91101
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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[Additional Counsel Listed on Signature Page]

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Counsel for the Proposed Class

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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MATTHEW EDWARDS, et al.
Plaintiffs,

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v.

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NATIONAL MILK PRODUCERS
FEDERATION, aka COOPERATIVES
WORKING TOGETHER, et al.,

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Defendants.

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Case No. 3:11-CV-04766 JSW
[consolidated with 3:11-CV-04791-JSW and
3:11-CV-05253-JSW]

STIPULATION AND [PROPOSED]
PRESERVATION ORDER

PURPOSE
This Order will govern preservation of Defendants’ electronically stored information
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(“ESI”) in this case as a supplement to the Federal Rules of Civil Procedure, this Court’s

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Guidelines for the Discovery of Electronically Stored Information, and any other applicable

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orders and rules. This Order does not govern preservation of Plaintiffs’ electronically stored

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information (“ESI”), which will be contained in a separate order.

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This Order does not address, limit, or determine the relevance, discoverability or

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admission into evidence of any Record (as defined below), regardless of whether the Record is

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required to be preserved pursuant to the terms of this Order. A duty to preserve under this

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Order is not synonymous with a duty to produce.

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This Order does not expand any record preservation requirements under the Federal

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Rules of Civil Procedure, and it does not limit any protection provided by Rule 37(f). The

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Parties do not waive any objections as to the production, discoverability, or confidentiality of

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documents and electronically stored information (“ESI”) preserved under this Order.

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This Order does not address the Parties’ respective responsibilities for the costs of

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retrieving or producing documents or ESI that may be subject to discovery. Some items may

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be too cost prohibitive to produce, and cost shifting may be necessary.

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2. COOPERATION
The Parties are aware of the importance the Court places on cooperation and have
committed to cooperate in good faith throughout the matter.
3. PRESERVATION
The Parties have discussed their preservation obligations and needs and agree that

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preservation of potentially relevant ESI will be reasonable and proportionate. Without any

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presumption that the following preservation periods are the appropriate time periods for

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discovery, Defendants agree to preserve only the following:

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a) ESI created or received between January 1, 2002, and December 31, 2012, will be
preserved as it presently exists for:

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i.

Pricing announcements related to the sale of raw milk; and

ii.

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Paper records, electronic mail, and other electronic records maintained on
network-accessible storage devices and/or personal computers related to the
creation, purpose, operation, administration and the effects of the CWT
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program, including but not limited to the effects on milk supply, the number
of milk farms, and milk prices, and any attempts to impede the ability of a
farmer who had participated in the program from producing and/or selling
milk again.

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b) ESI for the period of January 1, 2000 through the present, will be preserved as it
presently exists for:
i.

Transactional data (including pricing data) related to the sale of raw milk.

Plaintiffs agree to preserve paper records and ESI as they currently exist covering the same
time periods and topics set forth in subsections (a) and (b) above for non-transactional and
transactional information, respectively.
Given the number of Parties and the wide range of approaches used by the parties to
manage records (including the management of ESI and the systems used for its recovery in the
event of a disaster), it is not practical to attempt to define a single detailed process that all Parties

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must follow in order to preserve Records. Instead, a Party may use any reasonable method to

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preserve Records consistent with a Party’s record management systems or ordinary practices.

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The Parties are required to act in good faith and may not transfer ESI to paper form or

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downgrade ESI for the primary purpose of increasing the burden of discovery for other Parties.

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4. DOCUMENTS PROTECTED FROM DISCOVERY
Notwithstanding any other provision of this Order, the Parties have no obligation to
preserve the following:

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a)

Voicemail in any form;

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b)

Transitory information not otherwise stored as part of business
practices, including but not limited to temporary data stored in
computers’ random access memory (“RAM”);

c)

Data created by the normal operation of computer systems, including
but not limited to – metadata not enumerated within this Order or the
Parties’ separate Stipulation re ESI Discovery Protocol, cookie files,
cache files and temporary system files, and data fragments contained
in slack space or unused portions of a hard drive – that could only be
read using forensic recovery tools;

d)

Identical copies, provided at least one copy of a record is preserved
in electronic form or, if nonexistent, in paper form (maintaining the
integrity and organization of the record);

e)

Records filtered out by an automatic spam and/or virus filter, so long
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as the filtering criteria are reasonable (such criteria to be provided to
any other party upon request);

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f)

Instant messages, social media postings, and other forms of ESI not
normally recorded and preserved in the course of the Party’s
business operations;

g)

Records, as explained above in Section 3(a)(i)-(ii), created before
January 1, 2002, and after December 31, 2012; and

h)

Transactional data, as explained above in Section 3(b)(i), created
before January 1, 2000.

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5.

PERMISSIBLE MODIFICATIONS AND ALTERATIONS OF RECORDS

A Party shall not be in violation of this Order if records are altered as a result of any of
the following actions undertaken in good faith (and not for any reason based upon this
litigation) and in the ordinary course of business:

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a)

Routine maintenance and operation of a Party’s computer systems;

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b)

Upgrading, loading, reprogramming, customizing, or migrating
software, even if such actions modify or alter the way data is
maintained, stored or viewed, provided the data itself is not altered;

c)

Inputting, accessing, updating or modifying data in a database,
resulting in the database being modified or altered;

d)

Editing, modifying, or taking down an Internet, extranet, or intranet
site, as long as a copy of a Defendant’s existing public Internet site is
preserved within ten (10) business days of the date of entry of this
Order;

e)

Editing or revising copies of records that have otherwise been
retained pursuant to this Order, as long as the date of the edit or
revision is captured and an unedited or unrevised identical version is
preserved; and

f)

Collecting ESI, including metadata.

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6.

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This Stipulated Order may be modified by a Stipulated Order of the Parties or by the

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MODIFICATION

Court for good cause shown.
IT IS SO STIPULATED, through Counsel of Record.

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DATED: February 12, 2013
HAGENS BERMAN SOBOL SHAPIRO LLP

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By: /s/ Elaine T. Byszewski
Elaine T. Byszewski
HAGENS BERMAN SOBOL SHAPIRO LLP
301 North Lake Avenue, Suite 203
Pasadena, CA 91101
Telephone: [phone]
Facsimile: [phone]
[e-mail]

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Steve W. Berman
George W. Sampson
Craig R. Spiegel
HAGENS BERMAN SOBOL SHAPIRO LLP
1918 Eighth Avenue, Suite 3300
Seattle, WA 98101
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]

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Attorneys for the Plaintiffs

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WILLIAMS & CONNOLLY LLP

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By: /s/ Steven R. Kuney
Steven R. Kuney
WILLIAMS & CONNOLLY LLP
725 Twelfth Street, N.W.
Washington, D.C. 20005
Telephone: [phone]
Facsimile: [phone]
[e-mail]

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BAKER & MILLER PLLC

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By: /s/ W. Todd Miller
BAKER & MILLER PLLC
2401 Pennsylvania Avenue, N.W., Ste 300
Washington, D.C. 20037
Telephone: [phone]
Facsimile: [phone]
[e-mail]

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Jesse W. Markham, Jr. (SBN 87788)
Marshall P. Madison Professor of Law
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University of San Francisco School of Law
2130 Fulton Street
San Francisco, CA 94117
Telephone: [phone]
Email: [e-mail]
Attorneys for Defendant Dairy Farmers of
America, Inc.

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EIMER STAHL LLP

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By: /s/ Nathan P. Eimer
Nathan P. Eimer (pro hac vice)
Vanessa G. Jacobsen (pro hac vice)
Daniel D. Birk (pro hac vice)
EIMER STAHL LLP
224 South Michigan Avenue, Suite 1100
Chicago, Illinois 60604
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]

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Attorneys for Defendant Land O’ Lakes, Inc.
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BOND SCHOENECK & KING, PLLC
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By: /s/ Edward R. Conan
Edward R. Conan (pro hac vice)
Suzanne O. Galbato (pro hac vice)
Lucy S. Clippinger (pro hac vice)
BOND, SCHOENECK & KING, PLLC
One Lincoln Center
Syracuse, NY 13202-1355
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
William S. Farmer (SBN 46694)
Jacob P. Alpren (SBN 235713)
FARMER BROWNSTEIN LLP
235 Pine Street, Suite 1300
San Francisco, CA 94104
Telephone (direct and fax): [phone]
Main: [phone]
[e-mail]
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[e-mail]

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Attorneys for Defendant Dairylea Cooperative
Inc.

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KEKER &VAN NEST, LLP
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By: /s/ Paula L. Blizzard
Paula L. Blizzard
Jan N. Little
KEKER & VAN NEST LLP
633 Battery Street
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]

_________

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Jill M. O'Toole
Susan S. Murphy
SHIPMAN & GOODWIN LLP
One Constitution Plaza
Hartford, CT 06103
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]

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Attorneys for Defendant Agri-Mark, Inc.

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STEPTOE & JOHNSON LLP
By: /s/ Chong S. Park
Chong S. Park
STEPTOE & JOHNSON LLP
1330 Connecticut Ave., NW
Washington, DC 20036
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorneys for Defendant
National Milk Producers Federation
I, Elaine T. Byszewski, attest that concurrence in the filing of this document has been
obtained from each of the other signatories.

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IT IS SO ORDERED

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February 14, 2013
Dated: ___________________

___________________________
Hon. Jeffrey S. White
UNITED STATES DISTRICT JUDGE

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