Otter Products, LLC v. Treefrog Developments Inc.

Filing 28

ORDER Regarding Electronic Discovery by Magistrate Judge Kathleen M. Tafoya on 12/14/2011. (kmtcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 1:11-cv-02180-WJM-KMT
OTTER PRODUCTS, LLC, a Colorado Limited
Liability Company,
Plaintiff,
v.
TREEFROG DEVELOPMENTS INC. d/b/a
LIFEPROOF, a Delaware Corporation,
Defendant.

ORDER REGARDING ELECTRONIC DISCOVERY

The Court ORDERS as follows
1.

This Order supplemental all other discovery rules and orders. It streamlines

Electronically Stored Information (“ESI”) production to promote a “just, speedy, and inexpensive
determination” of this action, as required by Federal Rule of Civil Procedure 1.
2.

This Order may be modified for good cause. The parties shall jointly submit any

proposed modifications within 30 days after the Federal Rule of Civil Procedure 16 conference.
If the parties cannot resolve their disagreements regarding these modifications, the parties shall
submit their competing proposals and a summary of their dispute.
3.

Costs shall be shifted for disproportionate ESI production requests pursuant to

Federal Rule of Civil Procedure 26. Likewise, a party’s nonresponsive or dilatory discovery

tactics will be cost-shifting considerations.
4.

A party’s meaningful compliance with this Order and efforts to promote efficiency

and reduce costs will be considered in cost-shifting determinations.
5.

General ESI production requests under Federal Rules of Civil Procedure 34 and

45 shall not include metadata absent a showing of good cause. However, fields showing the date
and time that the document was sent and received, as well as the complete distribution list, shall
generally be included in the production.
6.

General ESI production requests under Federal Rules of Civil Procedure 34 and

45 shall not include email or other forms of electronic correspondence (collectively “email”). To
obtain email parties must propound specific email production requests.
7.

Email production requests shall only be propounded for specific issues, rather

than general discovery of a product or business.
8.

Email production requests shall be phased to occur after the parties have

exchanged initial disclosures and basic documentation about the patents, the prior art, the
accused instrumentalities, and the relevant finances. While this provision does not require the
production of such information, the Court encourages prompt and early production of this
information to promote efficient and economical streamlining of the case.
9.

Email production requests shall identify the custodian, search terms and time

frame. The parties shall cooperate to identify the proper custodians, proper search terms and
proper timeframe.
10.

Each requesting party shall limit its email production requests to a total of five

custodians per producing part for all such requests. The parties may jointly agree to modify this
limit without the Court’s leave. The Court shall consider contested requests for up to five
additional custodians per producing party, upon showing a distinct need based on the size,
complexity, and issues of this specific case. Should a party serve email production requests for
additional custodians beyond the limits agreed to by the parties or granted by the Court pursuant
2

this paragraph, the requesting party shall bear all reasonable costs caused by such additional
discovery.
11.

Each requesting party shall limit its email production requests to a total of five

search terms per custodian per party. The parties may jointly agree to modify this limit without
the Court’s leave. The Court shall consider contested requests for up to five additional search
terms per custodian, upon showing a distinct need based on the size, complexity, and issues of
this specific case. The search terms shall be narrowly tailored to particular issues.
Indiscriminate terms, such as the producing company’s name or its product name, are
inappropriate unless combined with narrowing search criteria that sufficiently reduce the risk of
overproduction. A conjunctive combination of multiple words or phrases (e.g., “computer” and
“system”) narrows the search and shall count as a single search term. A disjunctive combination
of multiple words or phrases (e.g., “computer” or “system”) broadens the search, and thus each
word or phrase shall count as a separate search term unless they are variants of the same word.
Use of narrowing search criteria (e.g., “and,” “but not,” “w/x”) is encouraged to limit the
production and shall be considered when determining whether to shift costs for disproportionate
discovery. Should a party serve email production requests with search terms beyond the limits
agreed to by the parties or granted by the Court pursuant to this paragraph, the requesting party
shall bear all reasonable costs caused by such discovery.
12.

The receiving party shall not use ESI that the producing party asserts is attorney-

client privileged or work product protected to challenge the privilege or protection.
13.

Pursuant to Federal Rule of Evidence 502(d), the inadvertent production of a

privileged or work product protected ESI is not a waiver in the pending case or in any other
federal or state proceeding.
14.

The mere production of ESI in a litigation as part of a mass production shall not

itself constitute a waiver for any purpose.

3

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

Dated: December 13, 2011

/s Rachael D. Lamkin
Rachael D. Lamkin
Attorney for Plaintiff Otter Products LLC

Dated: December 13, 2011

/s Ian R. Walsworth
Ian R. Walsworth
Attorney for Defendant Treefrog
Developments Inc. d/b/a LifeProof

PURSUANT TO STIPULATION, IT IS SO ORDERED.

Dated: December 14, 2011

Kathleen M. Tafoya
United States Magistrate Judge

4