Garrison et al v. Whole Foods Market, Inc.

Filing 69

Order by Hon. Vince Chhabria granting 68 Stipulation re Treatment of ESI.(knm, COURT STAFF) (Filed on 4/15/2015)

1
2
3
4
5
6
7

SEYFARTH SHAW LLP
Jay W. Connolly (SBN 114725)
[e-mail]
Giovanna A. Ferrari (SBN 229871)
[e-mail]
Joseph J. Orzano (SBN 262040)
[e-mail]
560 Mission Street, 31st Floor
San Francisco, California 94105
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendant
WHOLE FOODS MARKET GROUP, INC.

8
9
10
11
12
13
14
15

Matthew R. Bainer, Esq. (S.B. #220972)
Molly A. DeSario, Esq. (S.B. #230763)
SCOTT COLE & ASSOCIATES, APC
1970 Broadway, Ninth Floor
Oakland, California 94612
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Web: www.scalaw.com
Attorneys for Representative Plaintiffs
and the Plaintiff Classes

16

UNITED STATES DISTRICT COURT

17

NORTHERN DISTRICT OF CALIFORNIA

18

20

MARY GARRISON and GRACE
GARRISON, individually, and on behalf of all
others similarly situated,

21

Plaintiffs,

19

22
23
24

Case No. 3:13-CV-05222-VC
STIPULATION AND [PROPOSED]
ORDER RE: TREATMENT OF ESI

v.
WHOLE FOODS MARKET GROUP, INC.,
Defendant.

25
26

Plaintiffs MARY GARRISON and GRACE GARRISON, individually, and on behalf of

27

all others similarly situated (collectively “Plaintiffs”), on the one hand, and Defendant WHOLE

28

FOODS MARKET GROUP, INC. (“Defendant”), by and through their undersigned counsel,

Stipulation Regarding Discovery of ESI and [Proposed] Order / Case No. 3:13-cv-05222-VC

1

hereby enter into the following stipulation regarding electronic discovery (“eDiscovery”) issues

2

in this case:

3

I.

4

PURPOSE
Defendant represents that its preservation efforts for this action have resulted in the

5

retention and ongoing storage of substantial amounts of electronically stored information, as

6

defined in Fed. R. Civ. P. 34(a)(1), (the “ESI”). Defendant believes the vast majority of the ESI

7

is not relevant to any claim or defense in this action. Defendant therefore seeks to establish a

8

reasonable protocol for treatment this ESI so that it need not continue to preserve the substantial

9

amounts of data that have no relevance to this action.

10

II.

11

DESIGNATION OF E-DISCOVERY LIAISON
To promote communication and cooperation between the Parties, each party shall

12

designate an eDiscovery Liaison. The eDiscovery Liaison will serve as a conduit of

13

communications regarding eDiscovery issues among the Parties including specific topics such

14

as: (1) the party’s electronic systems and capabilities in order to explain these systems and

15

answer relevant questions; (2) the technical aspects of eDiscovery, including ESI storage,

16

organization, and format issues;(3) eDiscovery dispute resolution; and (4) general facilitation of

17

the eDiscovery process.

18

III.

PRESERVATION

19

The parties have discussed their preservation obligations and needs and agree that

20

preservation of potentially relevant ESI will be reasonable and proportionate. Plaintiffs represent

21

that they have retained relevant ESI in their possession, custody, or control. Defendant

22

represents that it has issued ESI retention notices to appropriate custodians and has undertaken

23

reasonable efforts to preserve relevant ESI in its possession, custody or control.

24

IV.

25

DEVELOPMENT OF SEARCH TERMS
In an effort to cull the broadly preserved ESI down to a reasonable, manageable and cost-

26

effective review corpus, the Parties agree that certain filters should be applied to all preserved

27

data in order to identify the ESI most likely to contain highly relevant data.

28
2
Stipulation Regarding Treatment of ESI and [Proposed] Order / Case No. 3:13-cv-05222-VC

1

To this end, the Parties will attempt to develop a search methodology to locate potentially

2

relevant information from the preserved ESI. The Parties shall reach agreement as to the words,

3

terms, phrases and syntax to be searched.

4

The Parties agree to the following process for the development of search terms:
•

5
6

On or before 30 days after entry of this Order, Defendant shall provide to
Plaintiffs a proposed list of search terms and any related parameters.

•

7
8

On or before 15 days after receipt of Defendant’s proposed list of search terms
and related parameters, Plaintiffs shall provide any proposed changes.

•

9

On or before 15 days after receipt of Plaintiffs’ proposed changes, the Defendant

10

shall respond to Plaintiffs indicating agreement or disagreement as to any changes

11

proposed by Plaintiffs.
•

12
13
14

On or before 10 days after Defendant’s response, the Parties shall submit a joint
letter brief to the Court outlining any disagreements, should any remain.

V.

SEARCH TERM METHODOLOGY

15

A.

16

In general, the process of review and production will consist of (1) loading of ESI within

General Approach

17

the scope of relevant materials by agreement of the Parties; (2) further refinement through key

18

word searching and culling; (3) review by the producing party; and (4) identification by the

19

producing party of responsive, non-privileged ESI; and (5) production of responsive non-

20

privileged ESI to the other Parties.

21

The Parties acknowledge and agree that any information identified as a “hit” based upon

22

the search will be considered only potentially responsive. The Parties at their option may

23

produce any “hits” with or without attorney review to determine actual responsiveness and

24

whether any basis exists for withholding the document such as attorney-client privilege or

25

attorney work product.

26

B.

27

To reduce the likelihood of false search hits that may skew keyword search hit counts,

28

File Type/Extension Filters

cause the review of non-reviewable documents, and increase costs of review and production, the
3
Stipulation Regarding Treatment of ESI and [Proposed] Order / Case No. 3:13-cv-05222-VC

1

Parties agree to limit the processing, review, and production of loose file and email attachment

2

data to commonly known user-created ESI file types/extensions, to wit:

3
pdf

dotm

xlam

csv

rtf

dotx

xls

pages

txt

pot

xlsm

keynote

msg

potm

xlsx

numbers

eml

potx

xlt

jpeg

emlx

ppa

xltm

jpg

wpd

ppam

xltx

png

mpp

pps

mpp

gif

zip

ppsm

wk3

bmp

rar

ppsx

wk4

ai

7z

ppt

pub

psd

doc

pptm

pubx

eps

docm

pptx

pubm

docx

rtf

tif

dot

vsd

tiff

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

C.

27

Absent a showing of special need and lack of undue burden or cost, the Parties shall have

28

Cached Data, Residual Data, RAM and Fragmented Data

no obligation to review or produce deleted, shadowed, fragmented, residual data, or documents,
4
Stipulation Regarding Treatment of ESI and [Proposed] Order / Case No. 3:13-cv-05222-VC

1

cached, temporary files, random access memory (“RAM”) or ESI that would only be preserved

2

by taking constant and repeated forensic (bit stream) image of hard drives and computer memory

3

sticks, neither of which is practical technically or economically.

4

D.

5

The scope of Defendant’s identification and preservation efforts included custodians’

Other Forms of Electronically Stored Information

6

voice mail as well as cell phone voicemail, cell phone text/instant messages. Absent further

7

agreement of the Parties or a showing of good cause and a lack of undue burden or cost, the

8

Parties shall have no further obligation to review or produce ESI regarding or relating to (1)

9

text/instant messaging communications; (2) voicemail messages and system information

10

including VOIP data; (3) web browser files; (4) personal digital assistants (“PDAs”); and (5)

11

mobile devices including, but not limited to, smartphone devices.

12

E.

13

On-site inspections of electronic media under Fed.R.Civ.P. 34(b) shall not be permitted,

On-Site Inspections

14

except on mutual agreement of the Parties or upon ruling of the Court following a showing of

15

exceptional circumstances including good cause and specific need. Inspection or testing of

16

certain types of ESI may raise issues of confidentiality or privacy and such undue intrusiveness

17

resulting from such inspections shall be guarded against.

18

F.

19

Absent compelling circumstances and upon notice, any message, attachment or other

Spam and/or Virus Filtering

20

electronically stored information that has been identified by a spam or virus filter shall be treated

21

by the Parties as per se non-responsive and the Parties shall not be required to produce such ESI.

22

VI.

PRODUCTION METHODOLOGY

23

A.

24

The Stipulated Protective Order entered in this case, (Dkt. 52), provided that, with the

Form of Production

25

exception of documents to be produced in native format, documents shall be produced in single-

26

page Tagged Image Format image files (“TIFF”) named with sequential Bates numbering with

27

each page branded in the lower right-hand corner with sequential bates numbering. At Plaintiffs’

28

subsequent request, Defendant will endeavor to provide said documents in Portable Document
5
Stipulation Regarding Treatment of ESI and [Proposed] Order / Case No. 3:13-cv-05222-VC

1

Format (“PDF”) instead and will meet and confer with Plaintiffs if it deems that not feasible for

2

any particular production. Spreadsheets, PowerPoint presentations, multimedia (i.e., audio and

3

video), and similar files shall be produced in native file format named with sequential Bates

4

numbering, except where image/PDF format is required for purposes of redaction. For all

5

documents produced in native format, a single-paged placeholder with Bates numbers shall be

6

provided. Each production shall be accompanied by a corresponding electronic delimited text

7

file using Concordance standard delimiters (“Concordance DAT files”), OPT and/or LFP image

8

load files, and separate text files containing each document’s extracted text or text generated

9

through Optical Character Recognition (“OCR”). OCR text will only be provided for documents

10

with redactions or documents that are hard copy in origin, but all other text will be extracted text.

11

When available as part of normal processing, ESI productions shall also include available

12

metadata as listed in Exhibit B to the Stipulated Protective Order.

13

B.

14

During the processing of documents or ESI for production it may become apparent that

Non-Standard File Handling in Production

15

some file types are not easily converted from native format into image/PDF files. In such

16

circumstances, the Parties agree to confer on an appropriate native file protocol. After initial

17

production in image/PDF file format is complete, the requesting Party must demonstrate

18

particularized need for production of electronic documents in their native format. If the Parties

19

are unable to come to an agreement, the Parties agree to seek appropriate relief form the Court

20

through further stipulation or otherwise.

21

C.

22

Nothing herein alters the provisions governing the production of metadata as set forth in

23

Metadata Production

Exhibit B of the Stipulated Protective Order.

24

D.

25

Provisions regarding “claw back” and “non-waiver” shall be in accordance with Fed. R.

Claw-back Provision and Non-Waiver Agreement

26

Civ. P. 26 (b)(5), Fed. R. Evid. 502, and paragraph 11 of the Parties’ Stipulated Protective Order

27

entered in this case. The Parties and the Court recognize that the significant amount of ESI

28

involved increases the possibility of inadvertent production of materials to which the producing
6
Stipulation Regarding Treatment of ESI and [Proposed] Order / Case No. 3:13-cv-05222-VC

1

Party may make a claim of privilege or of protection from discovery as trial preparation material

2

or some other asserted right. The inadvertent production of such documents or ESI shall not

3

operate as a waiver of that privilege, protection or right and shall not operate as any subject

4

matter waiver of that privilege, protection or right.

5
6

VII.

RELIEF FROM COURT
If the Parties are unable to agree, or need further clarification on any issue relating to the

7
preservation, collection, or production of electronically stored information, any Party may seek
8
appropriate relief from the Court through further stipulation or otherwise.
9
IT IS SO STIPULATED BY COUNSEL OF RECORD.
10
11

DATED: April 10, 2015

SEYFARTH SHAW LLP

12
By: /s/ Jay W. Connolly
Jay W. Connolly
Giovanna A. Ferrari
Joseph J. Orzano

13
14
15

Attorneys for Defendant
WHOLE FOODS MARKET GROUP, INC.

16
17

DATED: April 10, 2015

SCOTT COLE & ASSOCIATES, APC

18
19

By: /s/ Molly A. Desario
Matthew R. Bainer
Molly a. DeSario

20
21

Attorneys for Plaintiffs
MARY GARRISON and GRACE
GARRISON, individually and on behalf of all
other similarly situated

22
23
24
25
26

PURSUANT TO STIPULATION, IT IS SO ORDERED.
April 14
DATED: _________________, 2015

27

___________________________
HON. VINCE CHHABRIA
United States District Court Judge

28
19171254v.1

7
Stipulation Regarding Treatment of ESI and [Proposed] Order / Case No. 3:13-cv-05222-VC