Green et al v. Drake Beam Morin, Inc.

Filing 39

ADDENDUM TO SCHEDULING ORDER (E-DISCOVERY PROTOCOL) re: 21 Scheduling Order signed by Magistrate Judge Craig B. Shaffer on 9/21/11. (cbssec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-01063-REB-CBS
JOHN GREEN and ELIZABETH ENRIGHT,
individually and on behalf of others similarly situated,
Plaintiffs,
v.
DRAKE BEAM MORIN, INC.,
Defendant.

ADDENDUM TO SCHEDULING ORDER
(E-DISCOVERY PROTOCOL)

Pursuant to Scheduling Order (doc. #21) and the Court’s further direction during
the Status Conference on August 3, 2011, plaintiffs John Green and Elizabeth Enright
(“Plaintiffs”) and defendant Drake Beam Morin, Inc. submit the following e-discovery
protocol for Court approval and inclusion in the Scheduling Order:
1.

In this case, Plaintiffs allege that Defendant violated the Fair Labor

Standards Act (“FLSA”) by failing to pay Plaintiffs and other similarly situated
consultants for hours worked and failing to pay overtime. Defendant has denied the
material allegations of Plaintiffs’ complaint and asserted various other defenses.
Plaintiffs have filed a motion for conditional collective action certification (doc. #17), and
have requested that notice be sent to all consultants employed by Defendant in the last
three years.

Defendant has filed a response in opposition to Plaintiffs’ motion for

collective action certification (doc. # 24); and Plaintiffs have filed a reply (doc. # 27).
The Court has not yet ruled on Plaintiffs’ motion.
2.

Pursuant to the Court’s order, the parties have conferred regarding

electronically stored information (“ESI”) that may be relevant to this matter, and have
agreed on the following protocol for discovery of ESI.
a.

E-discovery prior to the Court’s ruling on Plaintiff’s motion for

collective action certification. The parties do not anticipate that the burden or expense
of e-discovery will be significant as e-discovery pertains to the current Plaintiffs and optin plaintiffs. The parties have reached certain agreements, set forth below, to conduct
e-discovery with respect to the Plaintiffs and the current opt-in plaintiffs, and believe that
such discovery will allow them to identify and address any issues that may arise in
class-wide discovery.
b.

ESI in the possession, custody or control of Plaintiffs. Plaintiffs,

including the current opt-in plaintiffs, may have non-privileged emails, Word or
WordPerfect documents, and Excel spreadsheets relevant to this case.

Plaintiffs’

counsel has advised Plaintiffs, including the current opt-in plaintiffs, of their obligation to
preserve all ESI relating to their claims and Defendant’s defenses. The parties do not
anticipate that production of such ESI for Plaintiffs and the current opt-in plaintiffs will be
burdensome or expensive, and agree that production of such ESI will not require any
special agreements regarding cost, production format, or privilege.
c.

ESI in the possession, custody or control of Defendant. Defendant

maintains payroll records, time records, Orbit database records, and emails in electronic

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form. Defendant’s counsel has advised Defendant of its obligation to preserve all ESI
relating to Plaintiffs’ claims and its defenses; and the company has issued a litigation
hold to appropriate employees.
Payroll and time records for the Plaintiffs, including the opt-in plaintiffs, are
maintained in a central location. Records for the relevant time period may be accessed
and produced in paper or .PDF form without significant burden or expense.
The Orbit database is maintained in a central location, and records for the
relevant time period, April 21, 2008 through the present, may be accessed and
produced without significant burden or expense. Defendant has agreed to provide static
images, or screenshots, of database records relating to Plaintiffs, as well as a
description of all abbreviations and all headings the subject of which is not readily
ascertainable from the plain language of the heading, to allow Plaintiffs to review the
nature of information maintained in the database and make further decisions regarding
discovery of such information. The Orbit database can be exported to and produced as
an Excel spreadsheet.
Defendant uses an older version of LotusNotes for email.

Email is

maintained on a central server. Defendant backs up user mailboxes every night on a
rolling basis for seven weeks. Whatever is in a user’s mailbox at the time of back up,
which could include older emails, is saved. Once an email is deleted, the company will
only have a copy if it was saved on a backup tape and, in that circumstance, only so
long as the back up tape is not overwritten. The company does not retain the mailboxes
of former employees, except to the extent the mailboxes are saved on a back up tape.

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Shortly after the complaint was filed, the company pulled the entire back-up system then
in use. Searching the backup tapes will be labor intensive; Defendant presently is
exploring alternative approaches. The parties have agreed to conduct limited discovery
of email relating to the Plaintiffs, and the current opt-in plaintiffs or one or more of the
current opt-in plaintiffs, to allow the parties to refine the search process and determine
the burden and expense of production.
If Plaintiffs’ motion for collective action certification is granted, the parties
will confer regarding class-wide discovery, including the production of ESI. The exact
protocol will depend on the number of opt-in plaintiffs and other factors. The parties
anticipate that they will be able to use the results of e-discovery with respect to the
Plaintiffs to develop an efficient and cost-effective protocol for class-wide discovery.
3.

“Clawback”/non-waiver agreement. The parties acknowledge that, despite

each party’s best efforts to conduct a thorough pre-production review of all ESI and
other documents, some communications, information, or documents protected from
disclosure by the attorney-client privilege and/or the work-product doctrine (“Protected
Material”) may be inadvertently disclosed to another party during the course of this
litigation. The parties agree that the inadvertent disclosure of any Protected Material
shall NOT waive the privilege or protection with respect to such Protected Material or,
more broadly, the subject matter of such Protected Material, provided that the producing
party took reasonable steps to prevent the disclosure and, upon becoming aware of the
disclosure, promptly notifies all other parties. Within 14 days of receiving notice that
Protected Material has been inadvertently disclosed, all parties in receipt of such

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Protected Material shall return such Protected Material, including all copies, to the
producing party, and shall destroy all electronic copies of such Protected Material and
provide to the producing party a written confirmation of such destruction.
Notwithstanding the foregoing, if a party disputes a producing party’s claim of privilege
or protection, counsel for the party disputing the claim may retain a single copy of the
disputed Protected Material for the sole purpose of seeking a determination from the
Court as to disputed claim.

Until such time as the Court rules on the disputed claim,

the Protected Material at issue shall be held in confidence by counsel for the party
disputing the claim, and shall not be used or disclosed for any purpose, except as
provided herein. Nothing in this section is intended to supersede the Parties’ obligation
to return inadvertently disclosed privileged information pursuant to the requirements of
Colo. Rule of Professional Conduct 8.4(d).
DATED this 21st day of September, 2011.

By The Court:
s/Craig B. Shaffer
Craig B. Shaffer
United States Magistrate Judge

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APPROVED:
/s/ Jack D. McInnes________
Jack D . McInnes
Steve Siegel Hanson LLP
460 Nichols Road, Suite 200
Kansas City, Missouri 64112
Telephone: [phone]
Email: [e-mail]
[e-mail]

/s/ Daniel A. Sloane________________
Daniel A. Sloane
Hillyard, Wahlberg, Kudla & Sloane LLP
4601 DTC Boulevard, Suite 300
Denver, Colorado 80237
Telephone: [phone]
Telefax: [phone]
Email: [e-mail]

Attorneys for Plaintiffs

/s/ Darin Mackender______________
Darin Mackender
Fisher & Phillips LLP
1999 Broadway, Suite 3300
Denver, Colorado 80202
Telephone: [phone]
Telefax: [phone]
Email: [e-mail]
Attorneys for Defendant

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