Woolley et al v. Ygrene Energy Fund, Inc. et al

Filing 80

STIPULATED ESI DISCOVERY PROTOCOL ORDER. Signed by Judge Laurel Beeler on 02/08/2018. (tmiS, COURT STAFF) (Filed on 2/9/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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13 ANTHONY LOOK, et al.,
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Case No. 3:17-cv-01258

Plaintiffs,
vs.

STIPULATED ESI DISCOVERY
PROTOCOL

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17 YGRENE ENERGY FUND, INC. et al.,
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Defendants.

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Case No. 3:17-cv-01258
STIPULATED ESI DISCOVERY PROTOCOL

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Plaintiffs and Defendants, by and through their undersigned counsel, hereby stipulate and

2 agree to this ESI Protocol (“Protocol”) setting forth the specifications that shall govern document
3 production.
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1.

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This Order will govern discovery of electronically stored information (“ESI”) in this case

PURPOSE AND SCOPE

6 as a supplement to the Federal Rules of Civil Procedure, this Court’s Guidelines for the Discovery
7 of Electronically Stored Information, and any other applicable orders and rules.
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Nothing herein shall alter the parties’ respective rights or obligations under the Federal

9 Rules of Civil Procedure. Nothing in this Protocol establishes any agreement regarding the
10 subject matter or scope of discovery in this action, or the relevance or admissibility of any ESI or
11 other document or thing. Nothing in this Protocol shall affect, in any way, a producing party’s
12 right under the Federal Rules of Civil Procedure to seek or oppose reimbursement for costs
13 associated with collection, review, and/or production of ESI. Nothing in this Protocol shall be
14 interpreted to require disclosure of irrelevant information or ESI protected from discovery by the
15 attorney-client privilege, work product doctrine, or any other applicable privilege or immunity.
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2.

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The parties are aware of the importance the Court places on cooperation and commit to

COOPERATION

18 cooperate in good faith throughout the matter consistent with this Court’s Guidelines for the
19 Discovery of ESI.
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3.

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

PRESERVATION

22 preservation of potentially relevant ESI will be reasonable and proportionate. To reduce the costs
23 and burdens of preservation and to ensure proper ESI is preserved, the parties agree that:
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a)

Only ESI created or received between January 1, 2010 and the present will be

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preserved;

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b)

The parties have agreed on the types of ESI they believe should be preserved.

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c)

The parties have agreed that the total number of custodians per side for whom ESI

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will be preserved is 10, respectively. Custodians will be selected as follows:
Case No. 3:17-cv-01258
STIPULATED ESI DISCOVERY PROTOCOL

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1)

Custodians of Defendants’ ESI: Defendants have already identified five

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custodians for whom they believe ESI should be preserved. The parties will

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identify up to five more custodians of Defendants’ ESI for whom ESI should be

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preserved during the pendency of discovery. These additional five custodians will

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be identified no later than April 1, 2018 or three (3) months after Ygrene begins its

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rolling production of ESI, whichever is later.

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2)

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with this stipulation. The parties will identify up to four more custodians of

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Plaintiffs’ ESI for whom ESI should be preserved during the pendency of

Custodians of Plaintiffs’ ESI: Each Plaintiff will preserve ESI in accordance

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discovery. These additional four custodians will be identified no later than April 1,

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2018.

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d)

These data sources are not reasonably accessible because of undue burden or cost

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pursuant to Fed. R. Civ. P. 26(b)(2)(B) and ESI from these sources will be preserved but

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not searched, reviewed, or produced: backup media or other systems no longer in use that

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can no longer reasonably be accessed;

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e)

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parties agree not to preserve the following: NONE.

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f)

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could contain relevant information but (b) under the proportionality factors, should not be

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preserved: NONE.

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4.

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The parties shall meet and confer and reach agreement as to the method of searching, and

Among the sources of data the parties agree are not reasonably accessible, the

In addition to the agreements above, the parties agree data from these sources (a)

SEARCH

23 the words, terms, and phrases to be used to locate and identify potentially responsive ESI. The
24 parties shall also agree on the timing and conditions of any additional searches that may become
25 necessary in the normal course of discovery. In lieu of identifying responsive ESI using the search
26 terms and custodians/electronic systems as described above, a party may use a technology assisted
27 review platform to identify potentially relevant documents and ESI.
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STIPULATED ESI DISCOVERY PROTOCOL

Case No. 3:17-cv-01258

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5.

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The parties agree to produce documents in

PRODUCTION FORMATS
PDF,

TIFF,

native and/or

paper file

3 formats or any combination thereof as appropriate. If particular documents warrant a different
4 format, the parties will cooperate to arrange for the mutually acceptable production of such
5 documents. If the parties are unable to reach an agreement, the parties may present the dispute for
6 judicial resolution regarding the form of production and any potential shifting of costs.
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To the extent responding to a discovery request requires production of ESI contained in a

8 database, the producing party may comply with the discovery request by generating a report in a
9 reasonably usable and exportable electronic format. The parties agree not to degrade the
10 searchability of documents as part of the document production process. Common system and
11 program files as defined by the NIST library (which is commonly used by discovery vendors to
12 exclude system and program files from document review and production) need not be processed,
13 reviewed or produced. The parties shall meet and confer on any additional file types that also
14 need not be processed, reviewed, or produced. Productions can be transferred by any appropriate
15 and secure method agreed to by the parties.
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6.

DOCUMENTS PROTECTED FROM DISCOVERY

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a)

Pursuant to Fed. R. Evid. 502(d), the production of a privileged or work-product-

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protected document, whether inadvertent or otherwise, is not a waiver of privilege or

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protection from discovery in this case or in any other federal or state proceeding. For

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example, the mere production of privileged or work-product-protected documents in this

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case as part of a mass production is not itself a waiver in this case or in any other federal or

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state proceeding.

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b)

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26(b)(5) whereby the producing party may clawback any document that is produced,

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inadvertently or otherwise, and that is protected from discovery by the attorney-client

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privilege, work product doctrine, or other privilege. The producing party will give notice

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of its intent to clawback documents by identifying the documents by Bates number as soon

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as reasonably practical. Upon receipt of such notice, the receiving party will return all

The parties have agreed upon a “clawback” process pursuant to Fed. R. Civ. P.

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STIPULATED ESI DISCOVERY PROTOCOL

Case No. 3:17-cv-01258

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documents identified by the producing party and simultaneously delete all copies thereof.

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c)

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need not be placed on a privilege log. Communications may be identified on a privilege

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log by category, rather than individually, if appropriate.

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7.

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This Stipulated Order may be modified by a Stipulated Order of the parties or by the Court

Communications involving trial counsel that post-date the filing of the complaint

MODIFICATION

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

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Dated: January 30, 2018

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/s/ Jeffrey D. Kaliel
Counsel for Plaintiff

Dated: January 30, 2018

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/s/ Fredrick S. Levin
Counsel for Defendant

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IT IS ORDERED that the forgoing Agreement is approved.

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18 Dated: February 8, 2018
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UNITED STATES MAGISTRATE JUDGE

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STIPULATED ESI DISCOVERY PROTOCOL

Case No. 3:17-cv-01258