Smith 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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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 13 ANTHONY LOOK, et al., 14 15 Case No. 3:17-cv-01258 Plaintiffs, vs. STIPULATED ESI DISCOVERY PROTOCOL 16 17 YGRENE ENERGY FUND, INC. et al., 18 Defendants. 19 20 21 22 23 24 25 26 27 28 Case No. 3:17-cv-01258 STIPULATED ESI DISCOVERY PROTOCOL 1 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. 4 1. 5 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. 8 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. 16 2. 17 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. 20 3. 21 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: 24 a) Only ESI created or received between January 1, 2010 and the present will be 25 preserved; 26 b) The parties have agreed on the types of ESI they believe should be preserved. 27 c) The parties have agreed that the total number of custodians per side for whom ESI 28 will be preserved is 10, respectively. Custodians will be selected as follows: Case No. 3:17-cv-01258 STIPULATED ESI DISCOVERY PROTOCOL 1 1) Custodians of Defendants’ ESI: Defendants have already identified five 2 custodians for whom they believe ESI should be preserved. The parties will 3 identify up to five more custodians of Defendants’ ESI for whom ESI should be 4 preserved during the pendency of discovery. These additional five custodians will 5 be identified no later than April 1, 2018 or three (3) months after Ygrene begins its 6 rolling production of ESI, whichever is later. 7 2) 8 with this stipulation. The parties will identify up to four more custodians of 9 Plaintiffs’ ESI for whom ESI should be preserved during the pendency of Custodians of Plaintiffs’ ESI: Each Plaintiff will preserve ESI in accordance 10 discovery. These additional four custodians will be identified no later than April 1, 11 2018. 12 d) These data sources are not reasonably accessible because of undue burden or cost 13 pursuant to Fed. R. Civ. P. 26(b)(2)(B) and ESI from these sources will be preserved but 14 not searched, reviewed, or produced: backup media or other systems no longer in use that 15 can no longer reasonably be accessed; 16 e) 17 parties agree not to preserve the following: NONE. 18 f) 19 could contain relevant information but (b) under the proportionality factors, should not be 20 preserved: NONE. 21 4. 22 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. 28 2 STIPULATED ESI DISCOVERY PROTOCOL Case No. 3:17-cv-01258 1 5. 2 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. 7 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. 16 6. DOCUMENTS PROTECTED FROM DISCOVERY 17 a) Pursuant to Fed. R. Evid. 502(d), the production of a privileged or work-product- 18 protected document, whether inadvertent or otherwise, is not a waiver of privilege or 19 protection from discovery in this case or in any other federal or state proceeding. For 20 example, the mere production of privileged or work-product-protected documents in this 21 case as part of a mass production is not itself a waiver in this case or in any other federal or 22 state proceeding. 23 b) 24 26(b)(5) whereby the producing party may clawback any document that is produced, 25 inadvertently or otherwise, and that is protected from discovery by the attorney-client 26 privilege, work product doctrine, or other privilege. The producing party will give notice 27 of its intent to clawback documents by identifying the documents by Bates number as soon 28 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. 3 STIPULATED ESI DISCOVERY PROTOCOL Case No. 3:17-cv-01258 1 documents identified by the producing party and simultaneously delete all copies thereof. 2 c) 3 need not be placed on a privilege log. Communications may be identified on a privilege 4 log by category, rather than individually, if appropriate. 5 7. 6 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. 8 9 IT IS SO STIPULATED, through Counsel of Record. 10 11 Dated: January 30, 2018 12 13 /s/ Jeffrey D. Kaliel Counsel for Plaintiff Dated: January 30, 2018 14 /s/ Fredrick S. Levin Counsel for Defendant 15 16 IT IS ORDERED that the forgoing Agreement is approved. 17 18 Dated: February 8, 2018 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 4 STIPULATED ESI DISCOVERY PROTOCOL Case No. 3:17-cv-01258

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