McDonald v. Sabine Oil & Gas Corporation

Filing 30

ORDER REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION by Magistrate Judge Nina Y. Wang on 6/23/15. (bsimm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:15-cv-00910-CMA-NYW
PATRICK R. MCDONALD,
Plaintiff,
v.
Sabine Oil & Gas Corporation,
Defendant.
______________________________________________________________________
ORDER REGARDING DISCOVERY OF
ELECTRONICALLY STORED INFORMATION
______________________________________________________________________
This matter is before the court on the Parties’ Joint Motion for Entry of Stipulation
and Proposed Order Regarding Discovery of Electronically Stored Information (“Motion”
or “Stipulation and Proposed Order”) filed on June 17, 2015 [#28]. The Motion was
referred to the undersigned Magistrate Judge for consideration by Order of Reference
dated June 2, 2015 [#21] and Memorandum dated June 18, 2015 [#29].

Upon

consideration of the Parties’ Stipulation and Proposed Order, upon a finding a good
cause, the court hereby ORDERS:
I. STIPULATION AND PROPOSED ORDER
This Stipulation and Proposed Order Regarding Discovery of Electronically
Stored Information shall be the governing document by which the Parties and the Court
manage the production of electronically stored information (“ESI”) in this action. The
Parties shall take reasonable steps to comply with this Stipulation and Proposed Order.
This Stipulation and Proposed Order does not constitute an agreement concerning any
cost-sharing by the Parties concerning the production of ESI. Neither Party has agreed

to share costs for the other Party’s production of ESI, and each Party reserves their
rights, if any, concerning such cost-sharing.
The Parties state that this Stipulation and Proposed Order is based on facts and
circumstances as they are currently known to each Party, that the discovery process is
iterative, and that additions and modifications to this Stipulation and Proposed Order
may become necessary as more information becomes known to the Parties. Nothing in
this Stipulation and Proposed Order will be interpreted to require disclosure of
documents or information protected from disclosure by the attorney-client privilege,
work-product doctrine or any other applicable privilege or immunity. All Parties preserve
such privileges and there is no intent through either this Stipulation and Proposed Order
or the production of documents or information hereunder to waive or weaken such
privileges.
A.

ESI Retention and Identification Protocol
1.

Custodians:
The Parties will take steps to preserve potentially responsive ESI from

custodians who are listed in each party’s Rule 26(a) disclosures, to the extent such
individuals have documents that are in the Parties’ possession, custody or control. The
Parties will, at a minimum, perform searches of such custodians’ documents (including
emails and other ESI), to the extent such individuals have documents that are in the
Parties’ possession, custody or control, using agreed-upon search terms as described
below. The Parties also reserve their rights to seek to have searches performed and
documents produced from additional custodians’ documents.

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2. Description of Information Systems:
The Parties will also take steps to preserve potentially relevant ESI and other
documents in their possession, custody, or control. In addition to the custodian files
described above, these materials would include, but are not limited to, Outlook, Word,
Excel, PowerPoint and other electronic documents contained on central network drives
or folders; emails; and hard copy documents. The Parties will identify such documents
to each other and search such documents using agreed upon search terms and other
criteria as discussed below.
3. Keyword Search Terms:
Within seven (7) days of entry of this Stipulation and Order, the Parties shall
exchange lists of keyword search terms and other criteria that they propose to use to
search for responsive documents. The Parties agree to limit such terms to those likely
to yield information relevant to any Party’s claims and defenses in this action. The
Parties agree to meet and confer (by telephone) to discuss the use of agreed-upon
keyword search terms. Within seven (7) days of meeting and conferring to discuss the
use of agreed-upon key word searches, the Parties shall exchange any proposed edits
and/or additions to the proposed lists of search terms. The Parties shall endeavor to
come to an agreement regarding proposed keyword search terms. If the Parties are
unable to do so, they may present any issues for resolution by the court in accordance
with Local Rule 7.1, and the court’s practice guidelines.
B.

ESI Production Protocol
The Parties will produce any ESI to each other in digital form according to the
specifications in Exhibit A below.
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C.

Privilege Logs
The Parties agree that isolation, review, redaction and logging of privileged
communications can be costly and time-consuming. To limit the cost of a privilege
review and make document production more efficient, the Parties agree to use the
protocols described below with respect to handling responsive documents that may
include privileged information:
Unless otherwise ordered by the court, the Parties need not identify, on any
privilege or work product log in response to document requests, privileged documents
constituting:
1.

communications between any Party, and outside counsel for that Party that (a)
were for the purposes of litigating this case or concern the allegations made by
the Plaintiff in this action; (b) post-date the filing of this action; and (c) were not
disclosed to anyone who, at the time of the disclosure, was a third party to the
attorney-client relationship; and

2.

communications between attorneys or their agents and litigation experts or
consultants.

Neither Party will treat the failure to log such documents as a waiver of any privilege or
protection.
D.

Inadvertent Production of Documents

1.

Under Federal Rule of Evidence 502(d), the disclosure of a communication or
information covered by the attorney-client privilege or work-product protection
does not operate as a waiver of any such privilege or protection as to the
disclosed communication or information, nor does it operate as a waiver with

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respect to disclosed or undisclosed communications or information concerning
the same or similar subject matter.
2.

The Parties are governed by Federal Rule of Civil Procedure 26(b)(5)(B) with
respect to claims of privilege and Federal Rule of Evidence 502(b) with respect to
inadvertent production of privileged materials.

The Parties will abide by the

following procedure in connection with any inadvertent production of privileged
materials:
a.

If a producing Party has a good faith belief that a privileged

document has been inadvertently produced, it shall notify the receiving Party of
the producing Party’s claim of privilege within fourteen (14) days after the
producing Party actually discovers that such inadvertent production was made.
b.

Upon receipt of any notice claiming privilege with respect to a

produced document, all other Parties (regardless of whether they agree with the
producing Party’s claim of privilege) shall promptly:
1).

Use reasonable efforts to destroy or sequester all copies of

the inadvertently produced documents or material in such Parties’
possession, custody, or control, and notify the disclosing Party that they
have done so; and
2).

Notify the producing Party within fourteen (14) days that they

have taken reasonable steps to retrieve and destroy or sequester the
inadvertently produced documents or material from other persons, if any,
to whom such documents or material have been provided, consistent with
Rule 26(b)(5)(B).

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c.

To the extent a receiving Party disputes the producing Party’s claim

of privilege, the receiving Party shall notify the producing Party of its position
within five (5) business days of receiving the producing Party’s notice (the
“Dispute Notification”). Within five (5) business days of receiving the Dispute
Notification, the Parties shall meet and confer in an effort to resolve their
disagreement.

If the Parties are unable to resolve their disagreement, the

Parties may submit the issue to the Court for a determination, submitting any
document(s) in dispute under seal in compliance with Rule 26(b)(5)(B), and any
relevant agreements or Court orders. See Fed. R. Evid. 502(d)-(e).
E.

Limitations
Nothing in this Stipulation and Proposed Order shall prohibit a Party from seeking

modification of any of its terms either by stipulation or by application to the Court.
Should any Party subsequently determine that it cannot in good faith proceed as
required herein or without undue burden and cost, the Parties will meet and confer to
attempt to resolve any dispute before seeking intervention by the Court.
This Stipulation and Proposed Order relates to the general protocol of identifying
and producing ESI, and is not otherwise intended to alter the Parties’ respective rights
and obligations under the Federal Rules of Civil Procedure or this Court’s Local Rules.

DATED: June 23, 2015

BY THE COURT:

s/ Nina Y. Wang
United States Magistrate Judge

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EXHIBIT A
FORMAT FOR DIGITAL PRODUCTION OF ESI
Unless the Parties agree otherwise, Electronic Stored Information (“ESI”) will be
produced in the form in which it is ordinarily maintained or in a form that is reasonably
useable.
A.
TIFF Image Files: ESI should be produced as Group IV, 300 DPI, single-page
TIFF images. File and folder names cannot contain spaces or special characters
(including the comma). All image files must have a unique file name.
Documents that cannot be converted to TIFF (video, audio, applications, etc.) should be
produced in native format. Also, documents that can become unwieldy when converted
to TIFF (spreadsheets, databases, source code, large diagrams, etc.) should be
produced in native format. For documents produced natively, create a single page
place holder sheet bearing the Bates number, file name and file type of the document
being produced.
B.
Text Files: Each Document produced under this order shall be accompanied by
a single, multipage text file containing all of the text for that item, not one text file per
page. Each text file shall be named using the Bates number of the first page of the
corresponding production item.
i.
OCR: The text for each hard copy document shall be generated by
applying optical character recognition (OCR) technology to the scanned image of
the document. The Parties will endeavor to generate accurate OCR and will
utilize quality OCR processes and technology. The Parties acknowledge,
however, that due to poor quality of the originals, not all documents lend
themselves to the generation of accurate OCR.
ii.
ESI: The text of each ESI item shall be extracted directly from the ESI
native file. To the extent that is not technically possible (e.g., the underlying
native file is an image file), the text for each ESI item shall be generated by
applying OCR to the native file under the provision above. For contacts and
calendars collected and/or processed, user modifiable fields should be extracted
and produced as text.
iii.
Redacted Text: The text file corresponding to a redacted document may
be generated by applying OCR to the redacted TIFF file under the provision
above.
iv.
Foreign Language Text: The Parties will make reasonable efforts to
ensure that all technologies and processes used to collect, process and produce
the text of any Document- including all TIFF conversion and OCR processes, and
the extraction of text from native files – preserves all foreign language text,
punctuation and other characteristics as they exist in the source native file.
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C.

Bates Numbering:
i.
Each TIFF image produced under this order must be assigned a Bates
number that must always: (1) be unique across the entire document production;
(2) maintain a constant length of nine numeric digits (including 0-padding) across
the entire production; (3) contain only alphanumeric characters, no special
characters or embedded spaces; and (4) be sequential within a given document.
ii.
If a producing Party skips a Bates number or set of Bates numbers in a
production, the producing Party will identify any such gap within 14 days of each
production or 14 days after noticing the gap, whichever is later. The producing
Party need not provide a placeholder (e.g., gap sheet, dummy image) within the
production.
iii.
The producing Party will brand all TIFF images with its corresponding
Bates number, using a consistent font type and size. Parties will make
reasonable efforts to avoid obscuring any part of the underlying image with the
Bates number.

D.
Color: If a receiving Party finds the black and white version of a Document
insufficient, the receiving Party may request that the producing Party provide a color
image. The producing Party will not unreasonably deny a request to provide a color
image after the requesting Party demonstrates good cause for requesting a color image.
If a producing Party converts a document to color image in response to a request from a
receiving Party, the producing Party shall do so in JPEG, TIFF or such other format as
agreed with the receiving Party.
E.
Confidentiality Designations: If a particular document has a confidentiality
designation, the designation shall be stamped on the face of all TIFF images pertaining
to the document. The confidentiality designation should also be reflected in the
“Confidentiality” field.
F.
Load Files: All productions will be provided with Concordance image and data
load files. The image load file must reference each TIFF file in the corresponding
production, and the total number of TIFF files referenced in the load file must match the
total number of image files in the production. The total number of documents
referenced in a production’s data load file should match the total number of designated
document breaks in the corresponding image load file for that production.
G.

Fields:
i.
Documents shall be produced with, at a minimum, the following fields
regardless of whether the fields may be populated automatically from the native
file or created using an automated process: (a) BegBates, (b) EndBates, (c)

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BegAttach, (d) EndAttach, (e) Custodian, (f) NativeFileLink (for ESI only), (g)
AttachRange, (h) Confidentiality, (i) RecordType, (j) Redacted, and (h) Textlink.
ii.
The parties shall meet and confer on the provision of additional fields
including, but not limited to, e-mail metadata (e.g., To, From, CC, BCC, Subject),
date fields (e.g., date created, date sent, date received), time fields (e.g., time
created, time sent, time received), author, file name, and file extension.
iii.
ESI shall be processed to reflect the date and time standardized for the
UTC/GMT time zone.

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