NeoMedia Technologies, Inc. v. Dunkin' Brands Group, Inc.

Filing 28

JOINTLY PROPOSED E-DISCOVERY ORDER entered by Magistrate Judge Boyd N. Boland on 4/15/14. (bsimm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 1:13-cv-02351-RM-BNB
NEOMEDIA TECHNOLOGIES, INC.,
a Delaware corporation,
Plaintiff,
v.
DUNKIN’ BRANDS GROUP, INC.,
a Delaware corporation,
Defendant.
[JOINTLY PROPOSED] E-DISCOVERY ORDER
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 court order, except as specifically

provided otherwise. in the Court’s discretion or by agreement of the parties.
3.

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

efficiency and reduce costs will be considered in any requested cost-shifting determinations.
4.

Absent a showing of good cause, ESI produced in response to general

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.

5.

Absent a showing of good cause, no party need restore any form of media

upon which backup data is maintained in a party’s normal or allowed processes, including but
not limited to backup tapes, disks, SAN, and other forms of media, to comply with its discovery
obligations in the present case.
6.

Absent a showing of good cause, voicemails (unless attached to email),

PDA’s, smartphones, and mobile phones are deemed not reasonably accessible and need not be
collected and preserved.
7.

General 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.
8.

Email production requests shall only be propounded for specific issues,

rather than general discovery of a product or business. 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 relevant financial information.
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 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,
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, and maintain such email production requests after notice from the receiving
party that the requests exceed the ordered or agreed-upon limits, 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

seven 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, and maintain such
email production requests after notice from the receiving party that the requests exceed the
ordered or agreed-upon limits, the requesting party shall bear all reasonable costs caused by such

additional discovery.
12.

The receiving party shall not use ESI or email 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 privileged or work product protected ESI or email is not a waiver in the pending case or in
any other federal or state proceeding.
14.

The mere production of ESI or email in a litigation as part of a mass

production shall not itself constitute a waiver for any purpose.
15.

Except as expressly stated, nothing in this Order affects the parties’

discovery obligations under the Federal or Local Rules.
Dated April 15, 2014.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge