United States of America v. Coffeyville Resources Refining & Marketing, LLC

Filing 21

ORDER on Discovery of Electronically Stored Information. Signed by Magistrate Judge James P. O'Hara on 1/18/2012. (kg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

UNITED STATES OF AMERICA,
Plaintiff,
v.
COFFEYVILLE RESOURCES
REFINING & MARKETING,
LLC,
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No. 11-1291-JTM

ORDER ON DISCOVERY OF
ELECTRONICALLY STORED INFORMATION
This is an environmental case in which the plaintiff, United States of America, seeks
millions of dollars in alleged cleanup costs and penalties from the defendant, Coffeyville
Resources Refining & Marketing, LLC. Pursuant to the scheduling order entered on January
6, 2012 by the undersigned U.S. Magistrate Judge, James P. O’Hara (see doc. 17, pp. 4-5),
and consistent with Fed. R. Civ. P. 26(f), the parties’ attorneys have tried to reach agreement
on protocols to recommend to the court for handling discovery of electronically stored
information (ESI). Commendably, the parties have agreed on many items. But there remain
some subjects on which the parties disagree. On January 17, 2012, as directed by the court,
the parties jointly filed a report describing their points of agreement and disagreement, and
their competing rationale for the latter (see doc. 20).

O:\ORDERS\11-1291-JTM-ESI.wpd

The court has carefully reviewed the parties’ report. This order reflects the court’s
substantial adoption of the parties’ points of agreement, including but not limited to
agreements under Fed. R. Evid. 502. This order also reflects the court’s rulings on the
disputed points.
A.

Electronically Stored Information.
(1)

Discovery Not Required for Certain Categories of Discoverable Information.
(a)

Discovery shall not be required for the following categories of ESI for

this litigation:
(i)

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;
(ii)

Voicemail messages;

(iii)

Instant messages, such as messages sent on AOL Instant

Messenger or Microsoft Communicator;
(iv)

Text messages, such as cell phone to cell phone SMS messages;

(v)

Electronic mail sent to or from a personal digital assistant (PDA)

or smartphone (e.g., BlackBerry), provided that a copy of such email is routinely saved
elsewhere;

O:\ORDERS\11-1291-JTM-ESI.wpd

-2-

(vi)

Other electronic data stored on a PDA or smartphone, such as

calendar or contract data or notes, provided that a copy of such information is routinely saved
elsewhere;
(vii)

Logs of calls made from cellular phones;

(viii) Deleted computer files, whether fragmented or whole;
(ix)

Data stored in random access memory (RAM), cache memory,

or in temporary or cache files, including internet history, web browser cache and cookie files,
wherever located;
(x)

Data stored on photocopiers, scanners, and fax machines;

(xi)

Server, system, or network logs; and

(xii)

Electronic data temporarily stored by scientific equipment or

attached devices, provided that the data that is ordinarily preserved as part of a laboratory
report is, in fact, preserved in its ordinary location and form.
(b)

However, the parties shall adhere to all formal document or information

preservation policies that apply to the various categories of information identified
immediately above.
(2)

Obligations Related to “Draft” Documents and “Non-Identical” Documents.

For the purposes of preserving potentially discoverable material in this litigation, and for
purposes of discovery in this litigation, a “draft” document, regardless of whether it is in an
electronic or hard copy form, shall mean, “a preliminary version of a document that has been
shared by the author with another person (by email, print, or otherwise), or that the author
O:\ORDERS\11-1291-JTM-ESI.wpd

-3-

no longer intends to finalize or to share with another person.” In addition, a “non-identical”
document is one that shows at least one facial change such as the inclusion of highlights,
underlining, marginalia, total pages, attachments, markings, revisions, or the inclusion of
tracked changes. The parties need not preserve for discovery a document before and after
every change made to it, so long as “draft” documents, as defined by this paragraph, are
preserved. A document that is identical on its face to another document, but has small
detectable differences in the metadata, shall be considered an identical copy.
(3)

Preservation Does Not Affect Discoverability or Claims of Privilege. By

preserving information for the purpose of this litigation, the parties are not conceding that
such material is discoverable, nor are they waiving any claim of privilege. Nothing in this
order shall alter the obligations of the parties to provide a privilege log for material withheld
under a claim of privilege.
(4)

Other Preservation Obligations Not Affected. Nothing in this order shall affect

any other obligations of the parties to preserve documents or information for other purposes,
such as pursuant to court order, administrative order, statute, or in response to other pending
or anticipated litigation. In addition, nothing in this order shall eliminate or alter any party’s
obligation to retain native format copies, including associated metadata, of all documents
produced in this litigation, together with the original hard copy documents for all paper
discovery produced in this litigation.

O:\ORDERS\11-1291-JTM-ESI.wpd

-4-

(5)

Meet and Confer Requirement. Before filing any motion with the court

regarding electronic discovery or evidence, the parties shall meet and confer in a good faith
attempt to resolve any such disputes.
(6)

Format for Production.
(a)

Ordinary paper documents: Documents on 11 x 17 inch or smaller

paper shall be scanned and produced on CD-ROM, DVD-ROM, or external hard drive.
Documents shall be scanned as 300 dpi single-page TIFF files, using CCITT Group IV
compression. Each page shall be branded with a unique Bates number, which shall not be
an overlay of the image. The images shall be accompanied by: (1) an OpticonTM or IPRO®
“cross reference file” which associates each Bates number with its corresponding single-page
TIFF image file; and (2) a “text load file” containing comma delimited, double-quotation
qualified ASCII text which will populate fields in a searchable flat database environment,
containing one line for each document and each of the applicable fields as described in
Appendix A to this order.
(b)

Word, WordPerfect, and PDF documents shall be converted to single-

page TIFF images and produced consistent with the specifications in paragraph A.6.a, except
that the text load file shall contain the extracted text from each document in place of OCR
text, unless the document contains redactions, in which case OCR text may be provided. If
the document contains comments or tracked changes, the TIFF images shall be generated
based on how the document appears when first opened using view settings contained in the
file.
O:\ORDERS\11-1291-JTM-ESI.wpd

-5-

(c)

Microsoft PowerPoint files shall be processed and produced in the same

manner as Word, WordPerfect, and PDF documents, except that the images shall be
generated as full color, full page, JPEG images with one slide per page.
(d)

E-mail and attachments should be converted to single-page TIFF images

and produced consistent with the specification in paragraph A.6.a. If the producing party
redacts any part of the e-mail before producing it, OCR text may be provided in place of
extracted text. Attachments shall be processed as though they were separate documents, and
the text load file shall include a field in which the producing party shall identify, for each email, the Bates range of any attachment.
(e)

Microsoft Excel files and other spreadsheets shall be produced in native

file format in a separate folder on the production media, and the text load file shall contain
a field that identifies the file path of the native file corresponding to each document.
(f)

Digital photographs shall be produced as image files at their original

resolution with Bates numbers branded onto them.
(g)

Embedded files shall be treated as though they were separate files,

except that the text load file shall include a field in which the producing party shall identify,
for each document containing an embedded file, the Bates range of any such embedded file.
This Bates range may be identified in the same field as the Bates range of an e-mail
attachment.

O:\ORDERS\11-1291-JTM-ESI.wpd

-6-

(h)

Before any party produces other kinds of electronic data, including

databases, CAD drawings, GIS data, videos, etc., the parties shall meet and confer to discuss
the format for the production.
(i)

The parties shall meet and confer periodically to formulate, validate and,

if necessary, refine search terms, search protocols, date restrictions, and custodians for email
messages and other ESI.
B.

Protection of Privileges and Work Product Immunity.
(1)

The parties’ stipulations and this order invoke the protections afforded by Fed.

R. Evid. 502. As used in this order, “privilege” means both the attorney-client privilege and
the work-product immunity doctrine.
(2)

The prosecution and defense of this action will require each party to review and

to disclose, through the discovery process, potentially large quantities of information and
documents, including ESI. As a result, record-by-record pre-production privilege review
would likely impose an undue burden on the parties’ resources.
(3)

Each party shall examine the files containing documents to be produced and

shall screen documents for privilege. Such examination shall be performed with due regard
for the likelihood that the files contain privileged documents. It may involve record-byrecord review of potentially privileged documents. But it may also involve or rely on
sampling or electronic searching.
(4)

If a producing party determines that it has produced a document upon which

it wishes to make a claim of privilege, the producing party shall within 30 days give all
O:\ORDERS\11-1291-JTM-ESI.wpd

-7-

counsel of record notice of the claim of privilege. The notice shall identify the document(s)
that is (are) privileged and the date the document(s) was (were) produced. If the producing
party claims that only a portion of the document is privileged, the producing party shall
provide, along with the notice of the claim of privilege, a new copy of the document with the
allegedly privileged portions redacted.
(5)

A receiving party is under a good-faith obligation to notify the producing party

upon identification of a document which appears on its face or in light of facts known to the
receiving party to be potentially privileged. Such notification shall not waive the receiving
party’s ability to subsequently challenge any assertion of privilege with respect to the
identified document. The producing party shall provide notice under paragraph B.4 above
within 5 business days of notification of production of a potentially privileged document by
the receiving party if the producing party believes the document to be privileged.
(6)

Upon receiving notice of a claim of privilege on a produced document, the

receiving party must, in accordance with Fed. R. Civ. P. 26(b)(5)(B), promptly sequester the
specified information and any copies it has and may not use or disclose the information,
except as provided by Fed. R. Civ. P. 26(b)(5)(B), until the claim is resolved. If the
receiving party disclosed the information before being notified, it must take reasonable steps
to prevent further use of such information until the claim is resolved. The parties shall
follow the procedure described in Fed. R. Civ. P. 26(b)(5)(B) for documents produced in this
litigation regardless of whether the producing party asserts its claim of privilege during or
after this litigation.
O:\ORDERS\11-1291-JTM-ESI.wpd

-8-

(7)

Pursuant to Fed. R. Evid. 502(d), the disclosure of privileged information or

documents in discovery conducted in this litigation consistent with the terms of the parties’
stipulation and this order, and shall not waive the claim of privilege or protection in any other
federal or state proceeding.
C.

Non-Logging of Certain Privileged Materials.
In response to discovery requests, the parties shall not have to include on their

privilege logs certain privileged paper or electronic documents that were either (1) written
by counsel or legal staff of one party and primarily addressed to other counsel, legal staff,
client officials, or non-testifying consultants of the same party; or (2) written by counsel,
legal staff, client officials, or non-testifying consultants of one party and primarily addressed
to that party’s counsel or legal staff. For the purposes of this order, legal staff includes those
individuals whose primary responsibilities involve legal matters under the supervision of
counsel, such as law clerks, summer associates, paralegals, legal assistants, and secretaries.
Documents “primarily addressed to” counsel or legal staff means that: (1) counsel or legal
staff members are the only recipients of the document; or (2) the name of counsel or legal
staff appears immediately after the “To” line or salutation of the document even if noncounsel or non-legal staff members are also listed as addressees or copies of the document.
A document that is primarily addressed to non-counsel or non-legal staff members on which
counsel or a legal staff member is merely copied or “cc’d” is not exempt from logging. This
order does not make documents “addressed primarily to” or authored by counsel or legal staff

O:\ORDERS\11-1291-JTM-ESI.wpd

-9-

members privileged but merely provides that if such documents are in fact privileged they
need not be included on a party’s privilege log.
D.

Costs of Document Production.
Unless the court orders otherwise for good cause shown as relates to specific ESI,

each party shall bear (or at least advance initially) all of the costs of preserving, collecting,
processing, reviewing, and producing its own documents. The court notes but respectfully
overrules defendant’s objection in the parties’ joint report that producing ESI in TIFF format
(instead of PDF) would be too costly. Significantly, defendant has provided no cost
estimates or comparisons, and thus its arguments in this regard are unpersuasive.
As indicated in the court’s scheduling order (doc. 17, p. 7), as relates to all “written
discovery” in this case, to avoid getting bogged down with overly broad requests and
frivolous objections, the parties and counsel should bear in mind that the court intends to
strictly enforce Fed. R. Civ. P. 26(g). See also Mancia v. Mayflower Textile Servs. Co., 253
F.R.D. 354, 355-65 (D. Md. 2008). Hopefully Rule 26(g) alone will serve as sufficient
disincentive for either party to make any unduly broad or disproportionate requests for ESI
that will result in undue expense. If it does not, then of course the objecting party is free to
file a timely (early) motion asking the court to rein in the specific discovery in question as
disproportionate. See Fed. R. Civ. P. 26(b)(2)(C). In any event, the parties and counsel are
forewarned that some or all of the costs of ESI discovery may, under 28 U.S.C. § 1920(4)
and Fed. R. Civ. P. 54(d)(1), be taxed against the losing party at the conclusion of this case.
See, e.g., Paradigm Alliance, Inc. v. Celeritas Tech., L.L.C., No. 07-1121-EFM, 2011 WL
O:\ORDERS\11-1291-JTM-ESI.wpd

-10-

3849724, at *1 (D. Kan. Aug. 30, 2011); B&B Hardware, Inc. v. Fastenal Co., No. 4:10-cv00317, 2011 WL 6829625, at *7 (E.D. Ark. Dec. 16, 2011); Advance Brands, LLC v.
Alkar–Rapidpak, Inc., No. 08–cv–4057, 2011 WL 4352495, at *6 (N.D. Iowa Sept. 15,
2011); Race Tires Am., Inc. v. Hoosier Racing Tire Corp., No. 2:07–cv–1294, 2011 WL
1748620, at *6 & n.6 (W.D. Pa. May 6, 2011). The court therefore expects that each party
will work to ensure that costs are kept in check by taking a reasonable and targeted approach
to e-discovery, lest it be the one taxed on the full amount of the bill.
IT IS SO ORDERED.
Dated January 18, 2012, at Kansas City, Kansas.

s/ James P. O’Hara
James P. O’Hara
U.S. Magistrate Judge

O:\ORDERS\11-1291-JTM-ESI.wpd

-11-

Appendix A

Descri!;!tion

FIELD Heading

E-mail

Attachment

*Begin Bates

yes

yes

*E nd Bates

yes

yes

Attachment

yes

yes

em ails w/attachments, include Bates
attachment range

Custodian

yes

yes

individual from whom the file is
collected

To

yes

From

yes

cc

yes

Pages (optional)

BCC

yes

Subject

yes

Sent Date

yes

Create Date

yes

Modified Date

yes

File Name

yes

Message 10

Outlook, Lotus Notes (UNID)

yes

MDSHash

attachments and loose files and
includes file format, i.e., .xis, .deb

yes

EXTRACTED TEXT

yes

yes

from Native files
from scanned documents or

* OCR

yes

yes

redacted files

Native File

* scanned paper documents
ESI, metadata and data from electronic file collections, i.e. emails,
attachments to emails, loose electronic files

Excel spreadsheets, Access
databases, etc., as agreed