D Three Enterprises, LLC v. Rillito River Solar LLC

Filing 30

STIPULATION AND ORDER REGARDING E-DISCOVERY entered by Magistrate Judge Craig B. Shaffer on 9/8/15. (amont, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF COLORADO
Civil Case No. 1:15-cv-1148-CBS
D THREE ENTERPRISES, LLC,
Plaintiff,
vs.
RILLITO RIVER SOLAR LLC d/b/a
ECOFASTEN SOLAR,
Defendant.

STIPULATION AND ORDER REGARDING E-DISCOVERY

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 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

cost-shifting

determinations.
4.

Absent a showing of good cause, general ESI production requests under
Federal Rules of Civil Procedure 34 and 45, or compliance with a mandatory

  ESI STIPULATION – PAGE 1

disclosure requirement of the Court, 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 agreement of the parties or further order of this Court, the following
parameters shall apply to ESI production:
a.

General Document Image Format. Each electronic document shall
be produced in industry-standard, single-page Tagged Image File
Format (“TIFF”) format or multiple page PDF format. TIFF files shall
be single page and shall be named with a unique production number
followed by the appropriate file extension. Load files, in a format
acceptable for the receiving party’s document processing software,
shall be provided to indicate the location and unitization of the TIFF
files. If a document is more than one page, the unitization of the
document and any attachments and/or affixed notes shall be
maintained as they existed in the original document.

b.

Text-Searchable Documents. No party has an obligation to provide
text searchable production; however, if a party’s documents already
exist in text-searchable format independent of this litigation, or are
converted to text-searchable format for use in this litigation, including
for use by the producing party’s counsel, then the producing party
shall produce the document in the same text-searchable format.

c.
  ESI ORDER – PAGE 2

Footer.

Each document image shall contain a footer with a

sequentially ascending production number.
d. Native Files. Electronic files may be produced in native format
whenever more practical to do so, e.g., spreadsheets. In addition,
party that receives a document produced in a format specified above
may make a reasonable request to receive the document in its native
format. If the parties are unable to reach agreement with regard to
requests for additional documents in native-file format, the parties
reserve the right to seek relief from the Court. Documents produced
natively shall be represented in the set of imaged documents by a
slipsheet indicating the production identification number and
confidentiality designation for the native file that is being produced.
e.

No Backup Restoration Required. 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. No party is required to alter the normal operation of any
automatic data backup system to comply with any obligation to
preserve data for purposes of this case.

f.

Voicemail and Mobile Devices. Absent a showing of good cause,
voicemails, PDAs and mobile phones are deemed not reasonably
accessible and need not be collected and preserved.

g.
  ESI ORDER – PAGE 3

Format for production of documents – hardcopy or paper

documents. All documents that are hardcopy or paper files
generally shall be scanned and produced in the same manner as
documents existing in electronic format, above, unless that is not
practical or cost efficient for specific sets or categories of documents.
h.

Source code. This Stipulation does not govern the format for
production of source code, which shall be produced pursuant to the
relevant provision of the Protective Order, if any, or shall otherwise
be produced in accordance with agreements of the parties, the
Federal Rules of Civil Procedure, this Court’s local rules, or a Court
order.

i.

Databases. Certain types of databases are dynamic in nature and
will often contain information that is neither relevant nor reasonably
calculated to lead to the discovery of admissible evidence. Thus, a
party may opt to produce relevant and responsive information from
databases in an alternate form, such as a report or data table. These
reports or data tables will be produced in a static format. Upon a
showing of need, the parties agree to identify the specific databases,
by name, that contain the relevant and responsive information that
parties produce.

j.

Requests for hi-resolution or color documents. The parties
agree to respond to reasonable and specific requests for the
production of higher resolution or color images. Nothing in this
Stipulation shall preclude a producing party from objecting to such

  ESI ORDER – PAGE 4

requests as unreasonable in number, timing, or scope, provided that
a producing party shall not object if the document as originally
produced is illegible or difficult to read. The producing party shall
have the option of responding by producing a native-file version of
the document. If a dispute arises with regard to requests for higher
resolution or color images, the parties will meet and confer in good
faith to try to resolve it.
k.

Foreign language documents. All documents shall be produced in
their original language. Where a requested document exists in a
foreign language and the producing party also has an Englishlanguage version of that document that it prepared for non-litigation
purposes prior to filing of the lawsuit, the producing party shall
produce both the original document and all English-language
versions. In addition, if the producing party has a certified translation
of a foreign-language document that is being produced (whether or
not the translation is prepared for purposes of litigation), the
producing party shall produce both the original document and the
certified translation. Nothing in this agreement requires a producing
party to prepare a translation, certified or otherwise, for foreign
language documents that are produced in discovery.

6.

General ESI production requests under Federal Rules of Civil Procedure 34
and 45, or compliance with a mandatory disclosure order of the court, shall
not include e-mail or other forms of electronic correspondence (collectively

  ESI ORDER – PAGE 5

“e-mail”).

To obtain e-mail, parties must propound specific e-mail

production requests.
7.

E-mail production requests shall be phased to occur timely after the parties
have exchanged initial disclosures, a specific listing of likely e-mail
custodians, a specific identification of the eight most significant listed e-mail
custodians in view of the pleaded claims and defenses (or fewer than eight
custodians if the party cannot reasonably identify eight custodians likely to
have relevant information),1 infringement contentions and accompanying
documents, invalidity contentions and accompanying documents, and
preliminary information relevant to damages. The exchange of this
information shall occur at the time required under the Federal Rules of Civil
Procedure, Local Rules, or by order of the Court. Each requesting party
may also propound up to three written discovery requests and take one
deposition per producing party to identify the proper custodians, proper
search terms, and proper time frame for e-mail production requests. The
court may allow additional discovery upon a showing of good cause.

8.

E-mail 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 time frame. Each requesting party shall
limit its e-mail production requests to a total of six 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

1

A “specific identification” requires a short description of why the custodian is believed to be significant.

  ESI ORDER – PAGE 6

additional or fewer custodians per producing party, upon showing a distinct
need based on the size, complexity, and issues of this specific case.
9.

Each requesting party shall limit its e-mail production requests to a total of
eight 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 additional or fewer 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. A party is not obligated to produce
non-privileged e-mails or other ESI solely because it is from the time frame
and contains one or more search terms identified by the requesting party.
Nothing herein is intended to overrule, or constitute a waiver of, any wellfounded objection.

  ESI ORDER – PAGE 7

10.

Pursuant to Federal Rule of Evidence 502(d), the inadvertent production of
privileged or work product protected ESI is not a waiver in the pending case
or in any other federal or state proceeding.

11.

The mere production of ESI in a litigation as part of a mass production shall
not itself constitute a waiver for any purpose.

12.

Except as expressly stated, nothing in this order affects the parties’
discovery obligations under the Federal or Local Rules.

So Ordered.

Dated: September 8, 2015

s/ Craig B. Shaffer

U.S. Magistrate Judge Craig B. Shaffer

  ESI ORDER – PAGE 8

WE SO MOVE and agree to abide by the terms of this Order:

Dated: September 1, 2015

/s/ Melanie J. Reichenberger
Melanie J. Reichenberger
Katherine W. Schill
Rachel N. Bach
Michael Best & Friedrich LLP
100 E. Wisconsin Avenue
Suite 3300
Milwaukee, Wisconsin 53202-4108
414.271.6560 (main)
414.277.0656 (fax)
[e-mail]
[e-mail]
[e-mail]
Christopher P. Beall
Levine Sullivan Koch & Schulz, LLP
1888 Sherman Street, Suite 370
Denver, Colorado 80203
Tel: [phone]
Fax: [phone]
[e-mail]
Attorneys for RILLITO RIVER SOLAR
LLC, d/b/a ECOFASTEN SOLAR

Dated: September 1, 2015

/s/ David A. Skeels
David A. Skeels
Michael T. Cooke
Dave R. Gunter
Friedman Suder & Cooke
604 East 4th Street, Suite 200
Fort Worth, TX 76102
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]
E-mail: [e-mail]
E-mail: [e-mail]
Attorneys for D THREE
ENTERPRISES, LLC

  ESI ORDER – PAGE 9