Engl v. Natural Grocers By Vitamin Cottage, Inc., et al

Filing 67

STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION entered by Magistrate Judge Nina Y. Wang on 2/1/16. (bsimm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:15-cv-02129-MSK-NYW
BERNHARD ENGL, individually and on behalf of all others similarly situated,
Plaintiff,
v.
NATURAL GROCERS BY VITAMIN COTTAGE, INC., a Delaware corporation, and
VITAMIN COTTAGE NATURAL FOOD MARKETS, INC., a Colorado corporation,
Defendants.

[PROPOSED] STIPULATED ORDER RE:
DISCOVERY OF ELECTRONICALLY STORED INFORMATION

I.

PURPOSE
This Order will govern discovery of electronically stored information (“ESI”) in this case

as a supplement to the Federal Rules of Civil Procedure, and any other applicable orders and rules.
The proposed plan is subject to amendment or supplementation based upon the results of
anticipated future meet and confers by later agreements of the parties, if necessary, in light of
further development, including, in particular, the parties’ engagement of document hosting
vendors and associated technical requirements. References are made to the Federal Rules of Civil
Procedure for ease of reference.
II.

COOPERATION
The parties are aware of the importance the Court places on cooperation and commit to

cooperate in good faith throughout the matter. The parties agree to cooperate in good faith
regarding the disclosure and formulation of appropriate search methodologies, custodians, and

potentially relevant noncustodial sources of ESI in advance of any search and/or collection to the
extent they have not already done so.
III.

LIAISON
The parties have identified liaisons to each other that are and will be knowledgeable about

and responsible for discussing their respective ESI. Each e-discovery liaison will be, or have
access to those who are, knowledgeable about the technical aspects of e-discovery, including the
location, nature, accessibility, format, collection, search methodologies, and production of ESI in
this matter. The parties will rely on the liaisons, as needed, to confer about ESI and to help resolve
disputes without court intervention.
IV.

SCOPE AND LIMITATIONS OF PRESERVATION AND PRODUCTION OF ESI
1.

The parties have preliminarily discussed and will meet and confer in an effort to

reach agreement by no later than February 3, 2016, about the appropriate scope and limitations of
both preservation and production of ESI in this case, including the number and identity of likely
custodians; relevant date ranges; locations of potentially relevant data; timing of productions
(including phased productions such as early production of information collected and produced in
the context of other litigation or regulatory investigations or inquiry to facilitate future targeted
discovery and production from more readily accessible sources of information, including certain
types and/or sources of ESI, in the early stages of production); and ESI in the possession, custody
or control of non-parties. No party is presently aware of any preservation issues that may impact
the availability of potentially relevant information or data. To the extent counsel for a party
becomes aware of such preservation issues, it shall take steps to promptly address the issue with

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opposing counsel to assess the impact on the litigation and the appropriate next steps. The parties
agree that preservation of potentially relevant ESI will be reasonable and appropriate.
2.

The parties agree to supplement this Joint E-Discovery Plan by February 12, 2016,

regarding any agreements reached and any areas in dispute as a result of the meet and confer
process to take place between now and February 3, 2016.
3.

As defined in the Rules, the parties agree to take the proportionality considerations

addressed in Fed. R. Civ. P. 26(b)(2)(C) into account for purposes of production of discovery in
this matter. The parties have, in addition, discussed and/or will discuss the concepts of testing and
sampling which contemplate that a party may request to test or sample any designated documents
or electronically stored information or tangible things. See Fed. R. Civ. P. 34(a)(1). Testing and
sampling can be important tools in managing discovery, particularly discovery of ESI, and the
parties agree to use them as and when appropriate in this litigation to ensure the streamlined and
efficient conduct of discovery. Information sufficient to demonstrate adequate quality controls
may be shared upon mutual agreement by the parties and as appropriate and necessary, to facilitate
efficient and effective discovery.
4.

By February 2, 2016, the parties shall exchange in writing the information listed in

items (a) through (e) below, as applicable. The parties agree and understand that their respective
responses are based on their knowledge and understanding as of the date of the response and that
further inquiry may reveal additional information pertinent to the efficient, effective collection of
potentially relevant materials. Each party reserves its right to amend or supplement its responses
to items IV(4)(a) through IV(4)(e):

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a.

A list of the producing party’s most likely custodians of relevant electronic

materials, including each person’s job title and a brief description of such person’s
responsibilities (including dates of employment by the applicable producing party). The
parties shall add or remove custodians as reasonably necessary;
b.

A list of each electronic communications and/or ESI storage system(s) that

may house any potentially relevant data for the producing party and a general description
of each system, including the dates of service, scope, and organization in each system;
c.

A general description, or at the responding party’s option, a copy of a

written rendition of the party’s operative document retention policies pertaining to any
electronic communications and or/ESI storage system(s) that may house any potentially
relevant data;
d.

Other pertinent information about the responding party’s electronically

created and/or stored documents and an explanation regarding whether those documents
are subject to limited accessibility, that is, those created or used by electronic media no
longer in use, maintained in redundant electronic storage media, or for which retrieval
involves substantial cost and/or lengthy time periods or substantial dedication of labor;
e.

Whether a responding party contends that that party has or may have any

potentially responsive ESI that is inaccessible or only of limited accessibility and, hence,
not producible by that party. If a responding party does so contend pursuant to
subparagraph (d), as to such ESI the party shall set forth:
(i)

The general nature of such information

correspondence, financial planning, budget, etc.);
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(e.g.,

(ii)

The reason(s) why the information is considered

inaccessible or on only limited accessibility;
(iii)

Information sufficient to identify the type of backup

and disaster recovery media used and the number of backup tapes involved,
or if applicable, the identity and version of applicable legacy software or
systems, and when such software or systems achieved legacy status by the
party;
(iv)

Proposed capture and retrieval process available (if

any) for identification and recovery of the information deemed inaccessible
(including cost estimates if readily available); and
(v)
5.

Whether that information is to be preserved.

If the requesting party intends to seek discovery of such wholly or partially

inaccessible ESI, the parties shall promptly either (a) reach an agreement as to how they will
proceed with retrieval and production, or (b) notify the Court that the parties have a dispute
regarding arguably or allegedly wholly or partially inaccessible electronic data for resolution.
V.

SEARCH
The parties agree that in responding to an initial Fed. R. Civ. P. 34 request, or earlier if

appropriate, they will meet and confer about methods to search ESI in order to identify ESI that is
subject to production in discovery and filter out ESI that is not subject to discovery. The parties
will aim to establish search methodologies with the goal of limiting the scope of review for
production, minimizing the need for motion practice, and facilitating production in accordance
with the deadlines set by the Court or agreed upon by the parties.
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VI.

PRODUCTION FORMATS
1.

The parties agree that attending to issues relating to form of production at the outset

facilitates the efficient and cost effective conduct of discovery. The parties agree to produce
documents in  PDF, TIFF,  native, and  a combination thereof (check all that apply) file
formats. If particular documents warrant a different format, the parties will cooperate to arrange
for the mutually acceptable production of such documents. The parties agree not to degrade the
searchability of documents as part of the document production process.
2.

Appendix A sets forth technical specifications that the parties propose to govern

the form of production of ESI in this litigation, absent other agreement by the parties within 21
days of the date a discovery request is propounded. (Requesting parties reserve the right to modify
the technical specifications in their requests for production or depending on the selection of a
platform for the hosting of data to maximize usability.) Among other things, the proposed
technical specifications incorporate the directive of Fed. R. Civ. P. 34(b)(2)(E)(iii) and provide
that a party need not produce ESI in more than one form, unless agreed to in limited circumstances
(as contemplated in the technical specifications).
3.

Deduplication of ESI is expected and the parties agree to meet and confer in good

faith regarding the terms and conditions of deduplication; however, in any event, deduplication is
subject to the parties’ good faith agreement to provide the requesting party with information about
other custodians who possessed any specific ESI that would be available but for the deduplication
as well as circumstances regarding admissibility under the Federal Rules of Evidence.
4.

The parties share a desire to ensure that ESI is produced in an acceptable, searchable

format. To that end, the parties have discussed but have not yet identified potentially relevant ESI
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that would not be amenable to the proposed technical specifications. The parties agree to meet
and confer in good faith to address any issues that may arise in this regard, and to seek judicial
intervention only if their efforts to resolve the issues on an informal basis are unsuccessful. The
parties also recognize that certain information to be produced in discovery may warrant production
in an alternative form for purposes of depositions and/or trial. To the extent that becomes
necessary, the parties will meet and confer to reach agreement about such form and will seek Court
intervention only if necessary.
VII.

CONFIDENTIALITY, PRIVACY, AND SECURITY OF INFORMATION
By January 19, 2016, the parties will negotiate and seek to present to the Court, for approval

and entry, a proposed Stipulated Protective Order to govern the treatment of information
warranting confidential treatment. To the extent the parties are unable to agree on any particular
terms of such agreement(s), any disputed issues will be presented to the Court.
VIII. DOCUMENTS PROTECTED FROM DISCOVERY
1.

Pursuant to Fed. R. Evid. 502(d), the production of a privileged or work-product-

protected document, whether inadvertent or otherwise, is not a waiver of privilege or protection
from discovery in this case or in any other federal or state proceeding. For example, the mere
production of privileged or work-product-protected documents in this case as part of a mass
production is not itself a waiver in this case or in any other federal or state proceeding.
2.

To the extent that a party determines that documents have been produced

inadvertently that warrant privilege or work product protection, they may be clawed back subject
to the terms of the Stipulated Protective Order.

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3.

Communications involving trial counsel that post-date the filing of the complaint

need not be placed on a privilege log. Communications may be identified on a privilege log by
category, rather than individually, if appropriate.
IX.

MODIFICATION
This Stipulated Order may be modified by a Stipulated Order of the parties or by the Court

for good cause shown.
IT IS SO STIPULATED, through Counsel of Record.

Dated: January 12, 2016

SIPRUT PC
By:

s/John S. Marrese

Joseph J. Siprut
Richard L. Miller II*
John S. Marrese

SIPRUT PC
17 North State Street
Suite 1600
Chicago, Illinois 60602
Telephone: [phone]
FAX: [phone]
[e-mail]
[e-mail]
[e-mail]
Michael Obernesser

SIPRUT PC
1756 South 8th Street
Colorado Springs, Colorado 80905
Telephone: [phone]
FAX: [phone]
[e-mail]
ABINGTON COLE + ELLERY
Cornelius P. Dukelow
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ABINGTON COLE + ELLERY
320 South Boston Avenue
Suite 1130
Tulsa, Oklahoma 74103
Telephone: [phone]
FAX: [phone]
[e-mail]
* Admission Application To Be Submitted
Attorneys For Plaintiff

Dated: January 12, 2016

HOLLAND & HART LLP
By:

s/ Romaine Marshall

Romaine Marshall
Engels Tejeda
HOLLAND & HART LLP
222 Main Street
Suite 2200
Salt Lake City, Utah 84101
Telephone: [phone]
FAX: [phone]
RCMarshall&hollandhart.com
[e-mail]
WILSON ELSER MOSKOWITZ
EDELMAN & DICKER LLP
Melissa K. Ventrone
WILS ON ELS ER M OS KOWITZ
EDELMAN & DICKER LLP
55 West Monroe Street
Suite 3800
Chicago, Illinois 60603
Telephone: [phone]
FAX: [phone]
[e-mail]

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

DATED: February 1, 2016

s/Nina Y. Wang
Hon. Nina Y. Wang
United States Magistrate Judge

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Appendix A
Technical Specifications for Production
PRODUCTION OF DOCUMENTS ORIGINATING AS PAPER
For documents that have originated in paper format, the following specifications should be used
for their production.
•

Images should be produced as single page TIFF group IV format imaged at 300dpi.

•

Each filename must be unique and match the Bates number of the page. The filename
should not contain any blank spaces and should be zero padded (for example
ABC00000001).

•

Media may be delivered on CDs, DVDs or External USB hard drives. Each media volume
should have its own unique name and a consistent naming convention (for example
ZZZ001 or SMITH001).

•

Each delivery should be accompanied by an image cross reference file that contains
document breaks.

•

A delimited text file that contains available fielded data should also be included and at a
minimum include Beginning Bates Number, Ending Bates Number, Custodian and
Number of Pages. The delimiters for that file should be:
Field Separator, ASCII character 020: “”
Quote Character, ASCII character 254 “þ”
Multi-Entry Delimiter, ASCII character 059: “;”

•

To the extent that documents have been run through an Optical Character Recognition
(OCR) Software in the course of reviewing the documents for production, full text should
also be delivered for each document. Text should be delivered on a document level in an
appropriately formatted text file (.txt) that is named to match the first bates number of the
document.

•

A text cross reference load file should also be included with the production delivery that
lists the beginning bates number of the document and the relative path to the text file for
that document on the production media.

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PRODUCTION OF EMAIL AND ELECTRONIC DOCUMENTS
Electronic documents should be produced in such fashion as to identify the location (i.e., the
network file folder, hard drive, back-up tape or other location) where the documents are stored
and, where applicable, the natural person in whose possession they were found (or on whose
hardware device they reside or are stored). If the storage location was a file share or work group
folder, that should be specified as well.
Attachments, enclosures, and/or exhibits to any parent documents should also be produced and
proximately linked to the respective parent documents containing the attachments, enclosures,
and/or exhibits.
For standard documents, emails, and presentations originating in electronic form, documents
should be produced as TIFF images using the same specifications above with the following
exceptions:
•

Provide a delimited text file (using the delimiters detailed above) containing the following
extracted metadata fields where they exist in the file being produced:
Beginning Production Number
Ending Production Number
Beginning Attachment Range
Ending Attachment Range
Custodian
Other Custodian (if cross custodian de-duplication is employed)
Confidentiality Designation
Original Location Path
Email Folder Path
Document Type
Author
Page Count
File Name
File Size
Hash Value
Date Last Modified
Date Created
Date Last Accessed
Date Sent
Date Received
Recipients
Copyees
Blind Copyees
Email Subject
Path to Native File
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Conversation Index
•

Extracted full text (not OCR text) should also be delivered for each electronic document.
The extracted full text should be delivered on a document level according to the
specifications above similar to paper documents.

•

Foreign language text files and metadata should be delivered with the correct encoding to
enable the preservation of the documents’ original language.

•

All spreadsheets should be produced in their native format and in the order that they were
stored in the ordinary course of business, i.e. emails that attach spreadsheets should not be
separated from each other and should be linked using the Attachment Range fields above.
The file name should match the bates number assigned to the file. The extractable metadata
and text should be produced in the same manner as other documents that originated in
electronic form. The parties agree to work out a future protocol governing the use and
format of documents produced pursuant to this paragraph at trial, depositions or hearings
(such as converting to TIFF images in accordance with the above protocol).

•

Notwithstanding the language of Federal Rule of Civil Procedure 34, upon review the
requesting party may ask for certain other documents and/or databases that were initially
produced in their petrified (TIFF or PDF) format to be produced in their native format in
the event that the petrified version is not reasonably usable. If this is the case, the
requesting party will submit a list of bates numbers identifying the documents. The
documents should be produced in their unaltered native format with an accompanying text
delimited text file (using the delimiters above) that contains the following fields:
Beginning Production Number
Ending Production Number
Beginning Attachment Range
Ending Attachment Range
Path to Native File
MD5 Hash Value

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PRODUCTION OF DATABASES AND OTHER STRUCTURED DATA
Generally, databases should be produced in a mutually agreeable data exchange format. To
determine the data that is relevant to the document requests, a list of databases and systems used
to manage relevant data should be provided with the following information:
Database Name
Type of Database
Software Platform
Software Version
Business Purpose
Users
Size in Records
Size in Gigabytes
A List of Standard Reports
Database Owner or Administrator’s Name
Field List
Field Definitions (including field type, size and use)
Upon review of the list, the parties agree to meet and confer regarding the data to be produced
from each source, if any, and the form(s) of the production thereof.

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