Pertile et al v. General Motors, LLC et al

Filing 79

JOINT ESI PROTOCOL entered by Magistrate Judge Nina Y. Wang on 6/18/15.(bsimm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:15-cv-00518-WJM-NYW

DANIEL PERTILE, an individual; and
GINGER PERTILE, an individual,
Plaintiffs.
v.
GENERAL MOTORS, LLC, a Delaware limited liability company;
TRW VEHICLE SAFETY SYSTEMS INC., a Delaware corporation;
KELSEY-HAYES COMPANY, a Delaware corporation;
JOHN DOE NOS. 1-25; and
JOHN DOE COMPANIES NOS. 1-25,
Defendants.
______________________________________________________________________________
PROPOSED JOINT ESI PROTOCOL
______________________________________________________________________________
ii. E-discovery plan.
To avoid discovery disputes, the parties have agreed to, and the court orders, the following:
a) Filtering. In an effort to control costs and reduce the volume of ESI that is not relevant
to this matter, the parties may filter ESI using the following techniques:
i.

Full Text and Metadata Field Searches. The parties may use reasonable search
terms and metadata field criteria to filter for relevancy prior to review and
production. With regard to custodial documents, including electronic mail, the
parties have agreed and have begun to meet and confer in good faith in an
attempt to reach an agreement on a list of custodians and search terms.

ii.

Duplicates. The parties may remove duplicative ESI to reduce unnecessary
cost of reviewing and producing duplicative ESI. A piece of ESI may be
removed as duplicative only if it is identical to a piece of ESI that is being
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produced. For example, for two e-mails to be considered identical, the e-mail
bodies, e-mail metadata, and the e-mail attachments must all match. A party
may de-duplicate across custodians. Duplicates shall be determined by MD5
Hash value.
b) Form of Production.
i.

Paper documents. Paper documents will be produced as images. The images
will be in black-and-white, single page, Group IV TIFF images. Each party
will accommodate reasonable requests for production of images in color, and
any document where the native or original version is in color and the document
cannot be identified or understood without use of color (e.g., charts or graphs
with information delineated solely by color), such document must be produced
in color upon request, where available. Images of paper documents shall be
organized either according to the manner in which they were maintained in the
ordinary course of business, or to correspond to the categories in the document
requests. Document boundaries will be logically determined. For all
paper documents produced, the Item Type field will reflect “paper
document” or “hard copy.”

ii.

Electronic data. Electronic data will be produced, whenever possible, by all
parties in single page Group IV TIFF format with accompanying metadata
fields and full extracted text files, with the exception of the following file types
that, to the extent produced, shall be produced in their native file format:
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Presentations (PowerPoint);
Spreadsheets (Excel);
Autocad drawings;
Audio files;
Photos (jpg and jpeg); and
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-

Video files.

The parties have discussed whether GM will produce finite element analysis
and/or other computer modeling in this case. At this stage, the parties have
“agreed to disagree” with regard to whether such electronic documents should
be produced. The parties will make a formal discovery request and response
and may brief this issue to seek a judicial resolution.
Files such as spreadsheets, presentations, and databases will not be produced in
native format if such files have been properly redacted (e.g., pursuant to
attorney-client privilege).
At the outset, the parties are agreeable to production of most ESI in the
form set forth above, but tThe parties agree and each reserve the right and/or
recognize the right of the receiving party to request individual documents in
native format. To that end, the parties agree that they will not withhold native
documents (where available) for reasonable requests for production of particular
documents in native format, even when such document was originally produced
in the TIFF format set forth above. Pursuant to this understanding, the parties
agree to move forward with initial disclosures in the above-stated format and
will work together to address any further issues with regard to this protocol
following that production.
iii.

GM’s Statement re: GM ESI: Based upon the age of the vehicle in this
case and the time frame when it was designed and produced, GM
anticipates that a limited volume of ESI, if any, may be located. GM
will determine the key custodians relevant to this litigation and search
where relevant information, documents and data is likely to be found for
issues relevant in this case.
To the extent it is reasonably accessible GM agrees to and will
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search for emails that may be relevant to this case. GM will determine
the key custodians relevant to and will search for emails that relate to the
issues relevant to this case. If relevant emails are located, GM will
produce them, subject to the entry of a suitable protective order. To the
extent a Protective Order is entered in this case, GM may designate emails under such Protective Order, if appropriate.
iv.

TRW’s Statement re: TRW ESI: Consistent with their role as component
part suppliers, TRW VSSI and Kelsey-Hayes do not expect to produce
the volume of documents typically associated with large-scale
electronic discovery. As a consequence of this more limited volume of
anticipated document production, TRW VSSI and Kelsey-Hayes
typically comply with their discovery obligations on a targeted, case-bycase basis. Many of the specific strategies referred to in the proposed
protocol may not apply to the document collection and production TRW
VSSI and Kelsey-Hayes anticipate. TRW VSSI and Kelsey-Hayes agree
to apply the strategies where practicable. TRW VSSI and Kelsey-Hayes
will produce TIFF images as described, including metadata load files
accompanying those files for the fields described below where metadata
is available, and will accommodate further requests for production of
native file formats when reasonable, practicable, and necessary. TRW
VSSI and Kelsey-Hayes will produce available digital video in native
format.

TRW

VSSI

and

Kelsey-Hayes

will

apply

sequential

alphanumeric litigation tracking numbers to its document production.
Further, due to potential unforeseen complications resulting both from
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the anticipated comparatively minor volume of TRW VSSI and KelseyHayes’s document production, and issues stemming from as-yetunknown document format and technical production obstacles, TRW
VSSI and Kelsey-Hayes propose they be afforded the opportunity to raise
All parties may raise specific objections, including undue hardship,
arising from application of the ESI protocol by following the dispute
resolution protocol included within the current proposal.
v.

Bates Numbering. Production images shall be endorsed with a sequential
padded alphanumeric bates number (e.g. ABC000001). Native files shall be
named to match the endorsed bates number on the corresponding tiff image
placeholder page (e.g. ABC000001.xls).

vi.

Load Files. Each production set of ESI shall be accompanied by a load file
which shall include a standard .DAT file for metadata and a standard
Concordance .OPT image load file. The .DAT load file should contain:
(1) all metadata fields; (2) OCR/extracted text path; and (3) path to
native file. All native files should be in a separate folder. The load file
shall contain, to the extent such information is available, the following
metadata fields:

Field Name
STARTBATES
ENDBATES
STARTBATESATTACH
ENDBATESATTACH
CUSTODIANS
ITEM TYPE
TO
FROM
CC

Description
Starting Bates number for record
All documents
All documents, indicates first page of parent.
All documents, indicates last page of last child.
Individual/Source(s) assigned to the record at collection time
All documents, indicates type of item produced (e.g., hard copy,
email, e-file, etc.)
E-mail Field
E-mail Field
E-mail Field
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BCC
SUBJECT
SENTDATE
SENTTIME
FILENAME
PAGE COUNT
FILE EXTENSION
FILE SIZE
ORIGINAL FILE PATH
IMAGE FILE PATH
AUTHOR
DATE CREATED
DATE MODIFIED
TEXT

vii.

E-mail Field
E-mail Field
E-mail Field
E-mail Field
E-mail attachments and user-created documents
Total pages for record
Original document file extension
Email attachments and user-created documents
Original document file size
Path to where data was located on original media
All documents (in .OPT image load file)
Author(s) of the document
Email attachments and user-created documents
Creation date of original document; format yyyymmdd
Email attachments and user-created documents
Last modification date of original document; format yyyymmdd
Email attachments and user-created documents
All documents (text provided as separate files, text path in dat file)

The parties are not obligated to provide objective coding for documents
that do not have metadata readily available, however, the parties
anticipate that the majority of ESI documents produced will be
accompanied by metadata.

viii.

Production Medium: All productions of ESI and Hard Copy documents
shall be sent to requesting parties on an encrypted CD, DVD, hard drive,
or other electronic media.

c) Inadvertent Disclosure
i.

Each party will conduct a review of its resulting Hard Copy and ESI for
responsiveness, privilege, and confidentiality.

ii.

Regardless of the steps taken to prevent disclosure, if a party produces
information that it later discovers, or in good faith later asserts, to be
privileged or otherwise protected from disclosure, the production of that
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information will not be presumed to constitute a waiver of any
applicable privileges or other protection, and the party receiving the
privileged or protected information may not argue that the producing
party failed to take reasonable steps to prevent production of the
privileged or protected materials.
iii.

Should either party produce privileged documents, Counsel may request,
in writing, to claw back specific documents by referencing the Bates
numbers or otherwise identifying the document. Upon such request, the
parties shall treat the information as privileged or protected unless and
until the parties agree otherwise or the Court determines the information
is not privileged or protected.

iv.

If the receiving party disagrees with the producing party’s claim(s) of
privilege and request for return of documents pursuant to this section,
the receiving party shall provide written notice to the producing party
within 14 days of receipt of the producing party’s written request to
return documents. The parties shall thereafter meet and confer in an
attempt to resolve the dispute. The parties shall treat the information as
privileged or protected unless and until the parties agree otherwise or the
Court determines the information is not privileged or protected. Should
the parties be unable to resolve the dispute, the receiving party shall
have 21 days from the final meet and confer effort to file a motion for in
camera review of the disputed document(s) and to seek a ruling on the
privileged status of such document(s). Nothing in this Order binds the
court to perform such in camera review.
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v.

Upon a determination that the information is privileged or otherwise
protected through the parties' agreement, ruling by the Court, or other
circumstance, the receiving party shall return or destroy any copy of
such matter in its possession within 7 days.

d) Dispute Resolution. If a party is unsatisfied with the opposing party’s ESI
production, the following dispute resolution protocol shall be followed:
i.

Within a reasonable time after receipt, the receiving party shall send
written notice to the producing party that specifically details the
particular deficiencies in the ESI production.

ii.

The producing party shall have 14 days to provide, in writing, a detailed
response to the receiving party’s specific concerns.

iii.

Within 7 days of the producing party’s response, the parties shall meet
and confer in person or by telephone in a good faith attempt to resolve
the dispute, or to resolve as much of the dispute as possible.

iv.

If the parties are unable to resolve the dispute, they shall do the
following:
i. Agree, in writing, as to those issues upon which they do agree;
and
ii. Request an informal hearing with the Magistrate Judge to seek
guidance on any unresolved issues pursuant to the Magistrate
Judge’s informal discovery procedures.

v.

Should a judicial hearing be necessary, the parties agree to orally present
the dispute to the Magistrate Judge in an effort to obtain guidance as to
resolution of any remaining disputes, unless otherwise ordered by the
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court to provide written argument and/or exhibits.
vi.

Within 7 days of the informal hearing, the parties shall meet and confer
in a final good faith effort to resolve any remaining disputes in
conformance with the Magistrate Judge’s guidance.

vii.

Should the parties remain unable to resolve the dispute after exhausting
the above-stated avenues, the receiving party shall have 21 days to file a
motion seeking a Court order regarding any remaining dispute(s).
However, nothing in this Order will be interpreted to interfere with the
court’s ability to consider, either upon motion of the party or sua sponte,
whether such the issues presented in the motion are timely.

DATED: June 18, 2015

BY THE COURT:

s/ Nina Y. Wang
United States Magistrate Judge

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