Arapahoe Surgery Center, LLC et al v. CIGNA Healthcare, Inc. et al
STIPULATED PROTECTIVE ORDER approved by Magistrate Judge Craig B. Shaffer on 06/17/2014. (Attachments: # 1 Agreement Re: Related Action, # 2 Stipulation Re: ESI) (cbslc1)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-03422
ARAPAHOE SURGERY CENTER, LLC,
CHERRY CREEK SURGERY CENTER, LLC,
HAMPDEN SURGERY CENTER, LLC,
KISSING CAMELS SURGERY CENTER, LLC,
SURGCENTER OF BEL AIR, LLC, and
WESTMINSTER SURGERY CENTER, LLC,
CIGNA HEALTHCARE, INC.,
CONNECTICUT GENERAL LIFE INSURANCE COMPANY,
CIGNA HEALTHCARE - MID-ATLANTIC, INC., and
CIGNA HEALTHCARE OF COLORADO, INC.,
STIPULATION REGARDING THE COLLECTION AND PRODUCTION OF
DOCUMENTS AND ELECTRONICALLY STORED INFORMATION
This Stipulation sets forth the general agreement between Plaintiffs and
Counterclaim Defendants Arapahoe Surgery Center, LLC, Cherry Creek Surgery
Center, LLC, Hampden Surgery Center, LLC, Kissing Camels Surgery Center, LLC,
SurgCenter of Bel Air, LLC, Westminster Surgery Center LLC, and Surgical Center
Development, Inc. d/b/a SurgCenter Development and Defendants and Counterclaim
Plaintiffs Cigna Healthcare, Inc., Connecticut General Life Insurance Company, Cigna
Health and Life Insurance Company, Cigna Healthcare - Mid-Atlantic, Inc., and Cigna
Healthcare of Colorado, Inc. (individually, a “Party” and collectively, the “Parties”)
regarding the production of paper documents (“Documents”) and electronically stored
information (“ESI”) in the above-captioned case (the “Action”).
Application. The procedures set forth in this Stipulation shall govern the
production of Documents and ESI (as those terms are used in the Federal Rules of Civil
Procedure, including Rule 34(a)) relevant to this Action. To the extent that relevant ESI
includes text messages, instant messages, and personal e-mail accounts not supported
by the Parties, the Parties will make reasonable efforts to collect and produce this
information (subject to relevant general and specific objections), provided a custodian
has control over this data and it is available in a format that is accessible by the Parties.
In the event that any Party identifies a particular source of responsive Documents or ESI
for which application of this Stipulation would be impossible or otherwise unduly
burdensome or impractical, the Party identifying the source will promptly notify other
Parties, and the Parties may meet and confer concerning the source.
Scope of Discovery. This Stipulation does not affect the proper subject
matter of discovery in this Action. Nor does this Stipulation imply that Documents or ESI
produced under its terms are relevant or admissible in this Action or in any other litigation.
Preservation of Data.
This Stipulation does not alter or expand the
preservation obligations of any Party.
Privileges. Nothing in this Stipulation shall be interpreted to require the
disclosure of Documents or ESI that a Party contends are protected by the attorney-
client privilege, the work-product doctrine, or any other applicable privilege or protection.
The Parties will make reasonable efforts to ensure that all
Documents and ESI they produce are legible.
If a copy is not legible (i) and it is
possible to produce a legible copy, such a legible copy will be produced (subject to
relevant general and specific objections) within five (5) business days of a request from a
receiving Party, or as mutually agreed upon by the Parties but (ii) if no legible copy can
be made, then the original will be made available for inspection and copying within ten
(10) business days of a request from a receiving Party, or as mutually agreed upon by
Modification and Amendment.
This Stipulation may be modified or
amended by written agreement of the Parties.
Reservation of Rights. The Parties reserve all rights under the Federal
Rules of Civil Procedure, the Local Rules of Practice of the U.S. District Court for the
District of Colorado, and applicable Judicial Practice Standards.
“Metadata” is defined as (i) information embedded in a Native
File that is not ordinarily viewable or printable from the application that generated,
edited, or modified such Native File; and/or (ii) information generated automatically by
the operation of a computer or other information technology system when a Native File
is created, modified, transmitted, deleted or otherwise manipulated by a user of such
“Native File(s)” means ESI in the electronic format of the
application in which such ESI is normally created, viewed, and/or modified.
COLLECTION OF DOCUMENTS AND ESI
Custodians. Within 30 days of receipt of a written discovery request from
another Party or from Entry of an Order consistent with this Stipulation, the responding
Party shall identify a reasonable subset of ESI custodians that are likely to have
ESI responsive to those written discovery requests. Prior to the production of ESI, each
Party shall provide to all other Parties (i) a copy of that Party’s organizational chart or
comparable document, to the extent such document is available, and (ii) a list of ESI
custodians from whom ESI will be collected.
Sources. The Parties shall take reasonable efforts to identify and collect
any Documents and ESI potentially relevant to this Action from all sources of potentially
responsive information, including servers, network drives, and shared drives.
Search of ESI. The Parties may use keyword searching to identify ESI
that is reasonably likely to have discoverable information regarding the subject matter of
this Action. If any Party chooses to use keyword searching to identify potentially relevant
ESI, that Party shall offer to meet and confer with regard to the search terms to be used
and the sources of ESI to be searched.
If the Parties disagree on the applicable
keywords to be used or sources of ESI to be searched, any Party may file an
appropriate motion for determination by the Court. During the pendency of any such
motion, the producing Party’s production obligation will be stayed.
Collection of ESI. The Parties shall use best efforts to collect ESI in a
forensically sound manner that does not alter metadata or other file attributes.
PRODUCTION OF DOCUMENTS
File Type. The Parties shall produce Documents as Group IV black and
white, single-page TIFF images at not less than 300 dpi resolution, along with
associated document-level text files, image load files (.DII, LFP, and OPT) indicating
appropriate document and family breaks, as well as metadata load files in delimited text
format containing the fields required by Section IV(C). The TIFF image must convey
the same information as if the Document were produced in paper.
Extracted Text and OCR. For documents that do not contain redactions,
the producing Party will produce an extracted text file for each electronic document
where text can be extracted, and an Optical Character Recognition (“OCR”) text file for
1) each imaged paper document, and 2) each electronic document for which text
cannot be extracted. For documents that contain redactions, the producing Party will
provide an OCR text file for the unredacted portions of such documents.
extracted text and OCR files shall be produced as document level text files and be
named consistently with their corresponding TIFF files ([producing Party’s Name]000000001.tif and [producing Party’s Name]-000000001.txt). The Parties shall agree to
discuss a list of file types, not containing extracted text and for which OCR text will be
provided by the producing Party at the time of production. The Parties recognize that
agreeing to a specific list now is premature as the Parties first need to understand
which file types might be relevant.
Color Copies. A receiving Party may request that specific Documents be
produced in color for good cause.
Family Groups. The Parties shall maintain family groups together in one
production volume and shall not break family groups apart in separate production
Scan Size. Reasonable efforts will be used to scan Documents at or near
their original size, so that the print or image on the Document appears straight, and not
skewed. Reducing image size may be necessary to display production numbers and
confidentiality designations without obscuring text. Physically oversized originals will
appear reduced. A producing Party reserves the right to determine whether to produce
oversized Documents in their original size. A receiving Party may request that specific
oversized Documents be produced in their original size for good cause.
Notes and Attachments.
If any original Document has notes or
attachments affixed thereto, the Parties will produce copies of those Documents with
the accompanying notes and attachments unless privileged or exceptioned during
At least five business days before the first deadline for the
production of documents, the producing Party shall produce to the receiving Party a
sample production of Documents to assist the receiving party’s ESI vendor in resolving
any formatting or load file issues before the full production is received.
PRODUCTION OF ESI
File Type. Except as specified in Section IV(C) below, the Parties shall
produce ESI as Group IV black and white, single-page TIFF images at not less than
300 dpi resolution, along with associated document-level text files, image load files (.DII,
LFP, and OPT) indicating appropriate document and family breaks, as well as
metadata load files in delimited text format containing the fields required by Section
Metadata. For each item of ESI, if applicable, the Parties shall identify the
persons to whom the ESI was copied/CC
persons to whom the ESI was blind copied/BCC
the native application date on which the ESI was created
the date the ESI was last modified
the subject line
the file name
the file extension (e.g., pdf, doc, ppt, etc.)
the custodian(s) from whom the ESI was obtained
The Parties will take reasonable steps to preserve, to the extent they have a value, all
Metadata associated with ESI even if such Metadata is not specified above for
Native Files. Microsoft PowerPoint and Excel files shall be produced as
Native Files. Tiff images should also be produced for all PowerPoint or presentation
files. For Excel and other spreadsheet files, the Parties agree to produce a single
slipsheet for each Excel file branded with the text “File Produced In Native Format”
along with the corresponding Filename, Bates number, and confidentiality designation.
A Party may request that another Party produce other ESI as Native Files for good
Production Format for Databases and Audio-Visual Files. The Parties
agree to meet and confer regarding the production format for Microsoft Access or other
similar databases, as well as any audio visual or media files.
The Parties agree that voice mail need not be produced
unless it is maintained and stored in a digital, searchable format and is under the
control of the Parties. If the parties are aware of responsive voice mail which is under
the control of the Parties which is not stored in a digital, searchable format the parties
shall meet and confer with respect to its production.
Color. A receiving Party may request that specific ESI be produced in
color for good cause.
De-duplication. A party is only required to produce a single copy of a
responsive document and shall deduplicate responsive ESI (based on MD5 or SHA-1
hash values at the document level) across custodians. However, hard copy documents
shall not be eliminated as duplicates of responsive ESI. In addition, if deduplication is
performed, the identity of the other custodians of deduplicated items must be listed in the
“All Custodians” metadata field of the copy of the single record that is produced.
Attachments. If any original ESI has attachments, the Parties will produce
copies of that ESI with the attachments unless privileged, not responsive to a discovery
request, or exceptioned during processing.
Preservation of Native Files. When ESI is produced, the producing Party
will maintain a separate file as a Native File and, in that separate file, it will not modify the
Native File in a manner that materially changes the File and the Metadata.
Encryption: The producing Party shall encrypt all Production Data.
Such encryption should only be implemented in a manner that would not preclude the
reasonable use of ESI. Encryption should be applied using True Crypt software or via
hardware encryption using hardware encrypted drives.
The producing Party shall
transmit the encryption key or password to the requesting Party, under separate cover,
contemporaneously with sending the encrypted media.
Chain of Custody: Producing Party shall ship encrypted media and/or data
via FedEx or UPS and provide tracking number for all shipments to ensure proper chain of
Archived Materials. Absent a showing by the requesting Party of
circumstances whereby the need for such ESI substantially outweighs the burden
associated with recovering it and that no other source for such ESI is otherwise available,
the Parties shall not be required to search Back-Up Tapes and Data or other back-up,
archived, or disaster recovery systems. For purposes of this Section, “Back-Up Tapes
and Data” means data duplicated in any electronic backup system for the purpose of
system recovery or information restoration, including but not limited to, system recovery
backup tapes, continuity of operations systems, and data or system mirrors or shadows,
if such data are routinely purged, overwritten or otherwise made not reasonably
accessible in accordance with an established routine system maintenance policy.
Preservation Not Required for Not Reasonably Accessible ESI.
Parties agree that the Parties need not preserve, search for, or produce (a) deleted
computer files, whether fragmented or whole, (b) temporary or cache files, including
internet history, web browser cache and cookie files, and (c) server, system, or network
At least five business days before the first deadline for the
production of ESI, the producing Party shall produce to the receiving Party a sample
production of ESI to assist the receiving party’s ESI vendor in resolving any formatting
or load file issues before the full production is received.
BATES LABELING / CONFIDENTIALITY DESIGNATIONS
Labeling. Each page of all images produced (whether Documents or ESI)
must be clearly labeled with an indelible, legible, unique Bates number identifier
electronically “burned” onto the image. Reasonable steps shall be taken to place the
Bates number at a location that does not obscure any information from the source
document. In addition, to the extent any image or file is to be marked confidential, each
page of the image or file to be marked confidential shall include the appropriate
confidentiality designation as determined in the Protective Order separately entered into
by the Parties. There shall be no other legend or stamp placed on the document image,
with the exception of redacted information due to claims of applicable privileges.
Consecutive Numbering. The Parties agree that a convention on Bates
number ordering will help the Parties better organize production of Documents and ESI
in this Action. Therefore, to the extent possible, Documents and ESI shall be Batesnumbered
relationships. Document numbers for documents produced by the Parties shall identify
the Party’s name and shall be in the format “Party Name-00000001.”
File Names. Image file names must be unique and must correspond with
the Bates number imprinted on the image.
For example, if the Bates number
“B0000001” was imprinted, the image would bear the name “B0000001.tif.”
No Party shall object that Documents or ESI produced
pursuant to this Stipulation is not authentic based upon the file naming convention
described in Section V(C), above. The Parties otherwise reserve all rights regarding
their ability to object to the authenticity of Documents or ESI, including the inherent
unreliability of metadata.
If Native Files are produced, the Party producing such
Native File shall include a single-image placeholder TIFF with a single Bates number on
the image itself. As stated above, the slipsheet for each native Excel file will include the
text “File Produced In Native Format” along with the corresponding File name, Bates
number, and confidentiality designation. The Native File shall not be renamed, but
rather will be linked to the placeholder TIFF and the Bates number assigned thereto.
There shall be no Bates numbering of Native Files at the page level.
PRIVILEGE AND REDACTIONS
The Parties agree that the following categories of
documents and ESI need not be identified on a privilege log: (i) all communications
between counsel (including in-house counsel and counsel of record in this Action) and
their respective clients since December 18, 2013; and (ii) all communications between
an in-house attorney or counsel of record and their respective clients concerning
scheduling, logistical, and/or other non-substantive or ministerial matters.
Further, the Parties recognize that there may be a limited number of instances
where there are categories or groups of Documents or ESI in which all items are
privileged and that, because of the large number of individual items in such a category or
group, it would be a great burden to separately identify on a privilege log each
individual Document or item of ESI included in that group. The Parties agree that in such
instances, in accordance with THE SEDONA PRINCIPLES: BEST PRACTICES
DOCUMENT PRODUCTION, comment 3(c) (2007 ed.) and as appropriate, instead of
separately identifying each Document or item of ESI on its privilege log, it may instead
identify categories or groups of privileged Documents or privileged ESI. In so doing, the
Party shall describe in its privilege log the category or group of privileged Documents
or ESI (including, without limitation, the criteria and method of delimiting the category or
group), the factual basis for a reasonable belief that all Documents or ESI in the
category or group are privileged, and the legal basis for the assertion of a privilege as to
all Documents or ESI in the category or group. Additionally, if a Party requests further
information relating to a category or group identified on another Party’s privilege log,
such information shall be provided so that the requesting Party has sufficient
information to determine whether or not to challenge the privilege claim. The ultimate
adjudication of challenged privilege claims shall be made on the basis of a documentby-document review.
Redactions. If the producing Party is redacting information from a page,
the producing Party shall electronically “burn” the word “Redacted” onto the page at or
reasonably near to the location of the redaction(s). If the producing Party redacts a
document, it may withhold from the document’s Load File only the metadata directly
associated with the redaction.
Native Files. Recognizing that Native Files cannot be redacted, producing
Parties shall undertake reasonable efforts to produce documents in redacted form
consistent with the principles contained in this Stipulation.
Clawback. The inadvertent disclosure to another Party of any document
which is subject to a legitimate claim that the document should have been withheld from
disclosure as a privileged attorney/client communication or attorney work product
shall not constitute a waiver of any privilege or otherwise affect the right to withhold it
from production as privileged or work product. If a request is made in good faith to
return any such allegedly privileged or work product document that was inadvertently
disclosed, the Party that received the document shall delete it and return all hard
copies of it within 10 days of the request. The privilege or work product status of such
document or information, if any, shall be deemed to be restored upon the making of
such request, provided, however: (1) nothing herein shall preclude the non-producing
party from requesting the Court to determine whether the document or information is
privileged or work product. In the event the non-producing party intends to challenge
the claim of privilege or work product, the non-producing party may retain a copy of
such document for such purposes; (2) if the producing party either (i) expresses the
intent to use such document or information at a hearing, deposition, or trial, or (ii)
uses such document or information at a hearing, deposition, or trial, the producing
party’s right to request a return of such document or information shall be foreclosed.
DATED this 16th day of June, 2014.
By: /s/ Joe R. Whatley, Jr.
Joe R. Whatley, Jr.
Colorado State Bar No. 38820
WHATLEY KALLAS, LLP
720 East Durant Avenue, Suite E6
Aspen, CO 81611
Tel: (970) 300-4848
Fax: (970) 427-5536
By: /s/ Edwin P. Aro
Edwin P. Aro
ARNOLD & PORTER LLC
370 Seventeenth Street, Suite 4400
Denver, CO 80202
Joshua B. Simon
Ryan D. McEnroe
KIRKLAND & ELLIS LLP
601 Lexington Avenue
New York, NY 10016
Edith M. Kallas
WHATLEY KALLAS, LLP
380 Madison Avenue, 23rd Floor
New York, NY 10017
Tel: (212) 447-7060
Fax: (800) 922-4851
Counsel for Defendants and Counterclaim
Deborah J. Winegard
WHATLEY KALLAS, LLP
1068 Virginia Avenue, NE
Atlanta, GA 30306
Tel.: (404) 607-8222
Fax: (404) 607-8451
W. Tucker Brown
WHATLEY KALLAS, LLP
2001 Park Place Tower, Suite 1000
Birmingham, AL 35203
Tel.: (205) 488-1200
Fax: (800) 922-4851
Henry C. Quillen
WHATLEY KALLAS, LLP
159 Middle Street, Suite 2C
Portsmouth, NH 03801
Tel: (603) 294-1591
Fax: (800) 922-4851
Counsel for Plaintiffs and Counterclaim
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