Wiese v. IES Commercial, Inc.

Filing 20

PARTIES AGREED ELECTRONIC DISCOVERY ORDER by Magistrate Judge Craig B. Shaffer on 2/6/14. (ccovi)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02594-WJM-CBS
CHAD M. WIESE,
Plaintiff,
v.
IES COMMERCIAL, INC.,
Defendant.

PARTIES AGREED ELECTRONIC DISCOVERY ORDER

Fed. R. Civ. P. 26(b)(2)(c) and 26(g)(1)(B)(iii) require that discovery in civil cases be
proportional to what is at issue in the case, and require the Court, upon motion or on its own, to
limit the frequency or extent of discovery otherwise allowed to ensure that discovery is
proportional. This Discovery Order is issued in furtherance of this obligation. Having reviewed
the pleadings and other relevant docket entries, the Court enters the following Discovery Order
that will govern discovery in this case, absent further order of the Court or stipulation by the
parties. This Discovery Order shall be read in conjunction with the Scheduling Order in this
case, which provides discovery deadlines.
1. Disclosure of Damage Claims and Relief Sought. The Plaintiff anticipates this case
will be set for trial in 2015 and that as of the time of trial Plaintiff’s back pay will total
approximately two years of back pay, or $84,000. Plaintiff may also seek other relief,
including front pay and liquidated damages. Defendant anticipates disputing Plaintiff’s
damages and may assert Plaintiff has failed to mitigate his damages and failed to accept
an unconditional offer of reinstatement.

2. Scope of Discovery – Proportionality.

Pursuant to Fed. R. Civ. P. 26(b)(2)(C) and

26(g)(1)(B)(ii)–(iii), the discovery in this case shall be proportional to what is at issue
in the case. To achieve this goal, and pursuant to Fed. R. Civ. P. 26(b)(1), discovery
will be conducted in phases, as follows.
a. Phase 1 Discovery. The first phase of discovery should focus on the facts that are
most important to resolving the case, whether by trial, settlement or dispositive
motion. Accordingly, the parties’ Phase 1 Discovery may seek facts that are not
privileged or work product protected, and that are likely to be admissible under the
Federal Rules of Evidence and material to proof of claims and defenses raised in
the pleadings. Phase 1 Discovery is intended to be narrower than the general
scope of discovery stated in Rule 26(b)(1) (“discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense,” even if not admissible, if
“reasonably calculated to lead to the discovery of admissible evidence” (emphasis
added)). Discovery sought during Phase 1 Discovery may not be withheld on the
basis that the producing party contends that it is not admissible under the Federal
Rules of Evidence, if it otherwise is within the scope of discovery permitted by
Rule 26(b)(1), as modified by this Order. Rather, a party from whom discovery
is sought (“Producing Party”) by an adverse party (“Requesting Party”) must
produce requested Phase 1 Discovery subject to any evidentiary objections, which
must be stated with particularity.
b. Phase 2 Discovery.

Unless the parties stipulate otherwise, the Court, upon a

showing of good cause, may permit discovery beyond that obtained under Phase 1
Discovery. In Phase 2 Discovery, the parties may seek discovery of facts that are

not privileged or work product protected, are relevant to the claims and defenses
pleaded or more generally to the subject matter of the litigation, and are not
necessarily admissible under the Federal Rules of Evidence, but are likely to lead to
the discovery of admissible evidence. A showing of good cause must demonstrate
that any additional discovery would be proportional to the issues at stake in the
litigation, taking into consideration the costs already incurred during Phase 1
Discovery and the factors stated in Rule 26(b)(2)(C)(i)– (iii). If

the

Court

determines that additional discovery is appropriate, the Requesting Party will be
required to show cause why it should not be ordered to pay all or a part of the cost
of the additional discovery sought.
3. Cooperation During Discovery.

The parties and counsel are expected to work

cooperatively during all aspects of discovery to ensure that the costs of discovery are
proportional to what is at issue in the case, as more fully explained in Mancia v.
Mayflower Textile Services Co., 253 F.R.D. 354, 357–58 (D. Md. 2009). The failure
of a party or counsel to cooperate will be relevant in resolving any discovery disputes,
including whether the Court will permit discovery beyond Phase 1 Discovery and, if so,
who shall bear the cost of that discovery. Whether a party or counsel has cooperated
during discovery also will be relevant in determining whether the Court should impose
sanctions in resolving discovery motions.
4. Discovery Motions Prohibited Without Pre-Motion Conference with the Court.
a. No discovery-related motion may be filed unless the moving party attempted in
good faith, but without success, to resolve the dispute and has requested a premotion conference with the Court to discuss the dispute and to attempt to resolve

it informally. If the Court does not grant the request for a conference, or if the
conference fails to resolve the dispute, then upon approval of the Court, a motion
may be filed.
b. Unless otherwise permitted by the Court, discovery-related motions and responses
thereto will be filed in letter format and may not exceed five, single-spaced
pages, in twelve- point font. Replies will not be filed unless requested by the
Court following review of the motion and response.
5. Production of Electronically Stored Information
Production of electronically-stored information (ESI) shall be governed as follows:
a. Absent an order of the Court upon a showing of good cause or stipulation by
the parties, a party from whom ESI has been requested shall not be required to
search for responsive ESI:
i. COMPETING PROPOSALS
Plaintiff’s Proposal: From not more than twenty (20) key custodians;
Defendant’s Proposal: From the following five custodians: Chad Wiese,
Arthur Cabrera, Blair Hubuda, Sarah Elms, and Darcia Perini. At the time
of his discharge, Mr. Hubuda was Plaintiff’s immediate supervisor, Arthur
Cabrera was the Plaintiff’s manager, and Ms. Elms and Ms. Perini were the
involved human resources representatives.
ii.

that was created more than two (2) before the filing of the lawsuit;
created prior to November 20, 2011 or after September 23, 2013;

iii.

from sources that are not reasonably accessible without undue burden or cost;
or

iv.

for more than 80 hours, inclusive of time spent identifying potentially
responsive ESI, collecting that ESI, searching that ESI (whether using
properly validated keywords, Boolean searches, computer-assisted or other

search methodologies), and reviewing that ESI for responsiveness,
confidentiality, and for privilege or work product protection.

The

producing party must be able to demonstrate that the search was
effectively designed and efficiently conducted. A party from whom ESI
has been requested must maintain detailed time records to demonstrate what
was done and the time spent doing it, for review by an adversary and the
Court, if requested.
b. Parties requesting ESI discovery and parties responding to such requests are
expected to cooperate in the development of search methodology and criteria to
achieve proportionality in ESI discovery, including appropriate use of computerassisted search methodology.
6. Duty to Preserve Evidence, Including ESI, that is Relevant to the Issues that Have
Been Raised by the Pleadings.
a. The parties are under a common-law duty to preserve evidence relevant to the
issues raised by the pleadings.
b. In resolving any issue regarding whether a party has complied with its duty to
preserve evidence, including ESI, the Court will consider, inter alia:
i.

whether the party under a duty to preserve (“Preserving Party”) took
measures to comply with the duty to preserve that were both reasonable and
proportional to what was at issue in known or reasonably-anticipated
litigation, taking into consideration the factors listed in Fed. R. Civ. P.
26(b)(2)(C);

ii.

w h e t h e r the failure to preserve evidence was the result of culpable
conduct, and if so, the degree of such culpability;

iii.

the relevance of the information that was not preserved;

iv.

the prejudice that the failure to preserve the evidence caused to the
Requesting Party;

v.

whether the Requesting Party and Producing Party cooperated with
each other regarding the scope of the duty to preserve and the manner in
which it was to be accomplished; and

vi.

whether the Requesting Party and Producing Party sought prompt resolution
from the Court regarding any disputes relating to the duty to preserve
evidence.

7. Non-Waiver of Attorney–Client Privilege or Work Product Protection. As part of
their duty to cooperate during discovery, the parties are expected to discuss whether the
costs and burdens of discovery, especially discovery of ESI, may be reduced by
entering into a non- waiver agreement pursuant to Fed. R. Evid. 502(e). The parties
also should discuss whether to use computer-assisted search methodology to facilitate
pre-production review of ESI to identify information that is beyond the scope of
discovery because it is attorney–client privileged or work product protected.

In accordance with Fed. R. Evid. 502(d), except when a party intentionally waives
attorney–client privilege or work product protection by disclosing such information to an
adverse party as provided in Fed. R. Evid. 502(a), the disclosure of attorney–client privileged or
work product protected information pursuant to a non-waiver agreement entered into under
Fed. R. Evid. 502(e) does not constitute a waiver in this proceeding, or in any other federal o r

state proceeding. Further, the provisions of Fed. R. Evid. 502(b)(2) are inapplicable to the
production of ESI pursuant to an agreement entered into between the parties under Fed. R. Evid.
502(e). However, a party that produces attorney–client privileged or work product protected
information to an adverse party under a Rule 502(e) agreement without intending to waive the
privilege or protection must promptly notify the adversary that it did not intend a waiver by its
disclosure.

Any dispute regarding whether the disclosing party has asserted properly the

attorney–client privilege or work product protection will be brought promptly to the Court, if the
parties are not themselves able to resolve it.
Respectfully submitted this 10th day of January, 2014.

s/ George C. Aucoin, Jr.
George C. Aucoin, Jr.
311 Forest Brook Boulevard
Mandeville, LA 70448
[e-mail]
ATTORNEY FOR PLAINTIFF

DATED the 6th day of February, 2014.
SO ORDERED:

s/ Craig B. Shaffer
Craig B. Shaffer
United States Magistrate Judge

s/ Conrad S. Kee
Conrad S. Kee
Veronica T. von Grabow
JACKSON LEWIS P.C.
950 17th Street, Suite 2600
Denver, CO 80202
[phone] – Telephone
[phone] – Facsimile
[e-mail]
[e-mail]
ATTORNEYS FOR DEFENDANT

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 10th day of January, 2013, I served a true and correct
copy of the PARTIES AGREED ELECTRONIC DISCOVERY ORDER with the Clerk of
the Court via CM/ECF, which will send an email notification to the following:
George C. Aucoin, Jr.
311 Forest Brook Boulevard
Mandeville, LA 70448
[e-mail]
s/ Dayana Lopez
for Jackson Lewis P.C.