Shandon Valley Transport Solutions USA, LLC v. Design Pallets, Inc. et al

Filing 58

ORDER Regarding E-Discovery. by Magistrate Judge Boyd N. Boland on 9/26/12. (bnbcd, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01900-CMA-BNB
SHANDON VALLEY TRANSPORT SOLUTIONS USA, LLC, a Colorado limited liability
company, d/b/a SVTS GLOBAL
Plaintiff/Counterclaim Defendant
v.
DESIGN PALLETS, INC., a Florida corporation,
DOUGLAS A. OLVEY, a Florida resident, and
JAMES DANKO, a Florida resident
Defendants/Counterclaim Plaintiff/Third-Party Plaintiff
v.
ADAM M. PENER, a Missouri resident,
COLIN D. CLARK, a Colorado resident,
STEVEN C. DAVIS, an Oklahoma resident,
and DAVID W. FELL, a Colorado resident
Third-Party Defendants
ORDER REGARDING E-DISCOVERY
The Court ORDERS as follows:
1. This Order supplements 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 by order of the Court only. in the Court’s
discretion or by agreement of the parties. 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 will 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. Absent a showing of good cause, general ESI production requests under
Federal Rules of Civil Procedure 34 and 45 shall not include metadata. 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, if such fields exist.
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 be phased to occur after the parties have
exchanged initial disclosures, a specific listing of likely email custodians in view of the pleaded
claims and defenses and the preliminary information relevant to damages.
8. 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.
9. Each requesting party shall limit its email production requests to a total of five
custodians per producing party 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,

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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
to this paragraph, the requesting party shall bear all reasonable costs caused by such additional
discovery.
10. Each requesting party shall limit its email production requests to a total of six
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 additional discovery.
11. 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.

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12. 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.
13. The mere production of ESI in a litigation as part of a mass production shall
not itself constitute a waiver for any purpose.
Dated September 26, 2012.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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