International IP Holdings, LLC et al v. Green Planet, Inc.
Filing
20
ORDER Relating to the Discovery of Electronically Stored Information. Signed by District Judge Robert H. Cleland. (LWag)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
INTERNATIONAL IP HOLDINGS,
LLC, a Michigan limited liability
company and INNOVATION
VENTURES, LLC, a Michigan limited
liability company,
Plaintiffs,
Case No. 2:13-cv-13988-RHC-PJK
Hon. Robert H. Cleland
v.
GREEN PLANET, INC., a California
Corporation,
Defendant.
/
ORDER RELATING TO THE DISCOVERY OF
ELECTRONICALLY STORED INFORMATION
1.01 Purpose
The purpose of these Principles is to assist courts in the administration of
Federal Rule of Civil Procedure 1, to secure the just, speedy, and inexpensive
determination of every civil case, and to promote, whenever possible, the early
resolution of disputes regarding the discovery of electronically stored information
(“ESI”) without Court intervention. Understanding of the feasibility, reasonableness,
1
costs, and benefits of various aspects of electronic discovery will inevitably evolve
as judges, attorneys, and parties to litigation gain more experience with ESI and as
technology advances.
1.02 Cooperation
An attorney’s zealous representation of a client is not compromised by
conducting discovery in a cooperative manner. The failure of counsel or the parties
to litigation to cooperate in facilitating and reasonably limiting discovery requests and
responses raises litigation costs and contributes to the risk of sanctions.
1.03 Discovery Proportionality
The proportionality standard set forth in Fed. R. Civ. P. 26(b)(2)(C) should be
applied in each case when formulating a discovery plan. To further the application
of the proportionality standard in discovery, requests for production of ESI and
related responses should be reasonably targeted, clear, and as specific as practicable.
Where the discovery request is potentially burdensome to the responding party, the
parties should consider options such as staging discovery and sampling, in an attempt
to reduce the costs of production. If the discovery request seeks marginally relevant
information, the requesting party should expect some cost shifting to be imposed by
the Court in the absence of an agreement between the parties.
2
2.10
Duty to Meet and Confer on Discovery and to Identify Disputes for
Early Resolution
(a)
Prior to the initial status conference with the Court, counsel shall
meet and discuss the application of the discovery process set forth in the Federal
Rules of Civil Procedure and these Principles to their specific case. Among the
issues to be discussed are:
(1)
the identification of relevant and discoverable ESI and
documents, including methods for identifying an initial subset of
sources of ESI and documents that are most likely to contain the
relevant and discoverable information as well as methodologies or
culling the relevant and discoverable ESI and documents from that
initial subset;
(2)
the scope of discoverable ESI and documents to be preserved
by the parties;
(3)
the formats for preservation and production of ESI and
documents;
(4)
the potential for conducting discovery in phases or stages as a
method for reducing costs and burden; and
(5)
the potential need for a protective order and any procedures to
3
which the parties might agree for handling inadvertent production of
privileged information and other privilege waiver issues pursuant to
Rule 502(d) or (e) of the Federal Rules of Evidence.
(b)
Disputes regarding ESI that counsel for the parties are unable to
resolve shall be presented to the Court at the initial status conference, Fed. R. Civ.
P. 16(b) Scheduling Conference, or as soon as possible thereafter.
(c)
The attorneys for each party shall review and understand how their
respective client’s data is stored and retrieved before the meet and confer
discussions in order to determine what issues must be addressed during the meet
and confer discussions.
(d)
If the Court determines that any counsel or party in a case has failed
to cooperate and participate in good faith in the meet and confer process or is
impeding the purpose of these Principles, the Court may require additional
discussions prior to the commencement of discovery, and may impose sanctions, if
appropriate.
2.02 E-Discovery Liaison(s)
In most cases, the meet and confer process will be aided by participation of
an e-discovery liaison(s) as defined in this Principle.
In the event of a dispute
concerning the preservation or production of ESI, each party shall designate an
4
individual(s) to act as e-discovery liaison(s) for purposes of meeting, conferring,
and attending court hearings on the subject.
Regardless of whether the e-
discovery liaison(s) is an attorney (in-house or outside counsel), a third party
consultant, or an employee of the party, the e-discovery liaison(s) must:
(a)
be prepared to participate in e-discovery dispute resolution;
(b)
be knowledgeable about the party’s e-discovery efforts;
(c)
be, or have reasonable access to those who are, familiar with the
party’s electronic information storage systems and capabilities in order to explain
those systems and capabilities and answer relevant questions; and
(d)
be, or have reasonable access to those who are, knowledgeable about
the technical aspects of e-discovery, including electronic document storage,
organization, and format issues, and relevant information retrieval technology,
including search methodology.
2.03 Preservation Requests and Orders
(a)
Appropriate preservation requests and preservation orders further the
goals of these Principles. Vague and overly broad preservation requests do not
further the goals of these Principles and are therefore disfavored. Vague and overly
broad preservation orders should not be sought or entered. The information sought
to be preserved through the use of a preservation letter request or order should be
5
reasonable in scope and mindful of the factors set forth in Rule 26(b)(2)(C).
(b)
To the extent counsel or a party requests preservation of ESI through
the use of a preservation letter, such requests should attempt to ensure the
preservation of relevant and discoverable information and to facilitate cooperation
between requesting and receiving counsel and parties by transmitting specific and
useful information. Examples of such specific and useful information include, but
are not limited to:
(1)
names of the parties;
(2)
factual background of the potential legal claim(s) and
identification of potential cause(s) of action;
(3)
names of potential witnesses and other people reasonably
anticipated to have relevant evidence;
(4)
relevant time period; and
(5)
other information that may assist the responding party in
assessing what information to preserve.
(c) If the recipient of a preservation request chooses to respond, that
response should provide the requesting counsel or party with useful and specific
information regarding the preservation efforts undertaken by the responding party.
Examples of such useful and specific information include, but are not limited to,
6
information that:
(1)
identifies what information the responding party is willing to
preserve and the steps being taken in response to the preservation
letter;
(2)
(3)
(d)
identifies any disagreement(s) with the request to preserve; and
identifies any further preservation issues that were not raised.
Nothing in these Principles shall be construed as requiring the
sending of a preservation request or requiring the sending of a response to such a
request.
2.04 Scope of Preservation
(a)
Every party to litigation and its counsel are responsible for taking
reasonable and proportionate steps to preserve relevant and discoverable ESI
within its possession, custody, or control. Determining which steps are reasonable
and proportionate in particular litigation is a fact specific inquiry that will vary
from case to case. The parties and counsel should address preservation issues at
the outset of a case, and should continue to address them as the case progresses
and their understanding of the issues and the facts improves.
(b)
Discovery concerning the preservation and collection efforts of
7
another party may be appropriate but, if used unadvisedly, can also contribute to
the unnecessary expense and delay and may inappropriately implicate work
product and attorney-client privileged matter. Accordingly, prior to initiating such
discovery a party shall confer with the party from whom the information is sought
concerning: (i) the specific need for such discovery, including its relevance to
issues likely to arise in the litigation; and (ii) the suitability of alternative means
for obtaining the information. Nothing herein exempts deponents on merits issues
from answering questions concerning the preservation and collection of their
documents, ESI, and tangible things.
(c)
The parties and counsel should come to the meet and confer
conference prepared to discuss the claims and defenses in the case including
specific issues, time frame, potential damages, and targeted discovery that each
anticipates requesting. In addition, the parties and counsel should be prepared to
discuss reasonably foreseeable
preservation issues that relate directly to the information that the other party is
seeking. The parties and counsel need not raise every conceivable issue that may
arise concerning their preservation efforts; however, the identification of any such
preservation issues should be specific.
(d)
The following categories of ESI generally are not discoverable in
8
most cases, and if any party intends to request the preservation or production of
these categories, then that intention should be discussed at the meet and confer or
as soon thereafter as practicable:
(1)
“deleted,” “slack,” “fragmented,” or “unallocated” data on
hard drives;
(2)
random access memory (RAM) or other ephemeral data;
(3)
on-line access data such as temporary internet files, history,
cache, cookies, etc;
(4)
data in metadata fields that are frequently updated
automatically, such as last-opened dates;
(5)
backup data that is substantially duplicative of data that is
more accessible elsewhere; and
(6)
other forms of ESI whose preservation requires extraordinary
affirmative measures that are not utilized in the ordinary course of
business
(e)
If there is a dispute concerning the scope of a party’s preservation
efforts, the parties or their counsel must meet and confer and fully explain their
reasons for believing that additional efforts are, or are not, reasonable and
9
proportionate, pursuant to Rule 26(b)(2)(C). If the parties are unable to resolve a
preservation issue, then the issue should be raised promptly with the Court.
(f)
Absent an order of the Court upon a showing of good cause or
stipulation by the parties, a party from whom ESI has been requested shall not be
required to search for responsive ESI:
(1)
from more than ten (10) key custodians;
(2)
that was created more than five (5) years before the filing of the
lawsuit, except for responsive, non-privileged ESI that is related to
use or ownership of Plaintiffs’ trademarks and trade dress;
(3)
from sources that are not reasonably accessible without undue
burden or cost; or
(4)
for more than 160 hours, exclusive of time spent reviewing the
ESI determined to be responsive for privilege or work product
protection, provided that the producing party can demonstrate that the
search was effectively designed and efficiently conducted. A party
from whom ESI has been requested must maintain detailed time
records to demonstrate what was done and the time spent doing it, for
review by an adversary and the Court, if requested.
10
2.05 Identification of Electronically Stored Information
(a)
At the Rule 26(f) conference or as soon thereafter as possible,
counsel or the parties shall discuss potential methodologies for identifying ESI for
production.
(b)
Topics for discussion may include, but are not limited to, any plans
to:
(1)
eliminate duplicative ESI and whether such elimination will
occur only within each particular custodian’s data set or whether it
will occur across all custodians;
(2)
filter data based on file type, date ranges, sender, receiver,
custodian, search terms, or other similar parameters; and
(3)
use keyword searching, mathematical, or thesaurus-based topic
or concept clustering, or other advanced culling technologies.
2.06 Production Format
(a)
At the Rule 26(f) conference, counsel and the parties should make a
good faith effort to agree on the format(s) for production of ESI (whether native or
some other reasonably usable form). If counsel or the parties are unable to resolve
a production format issue, then the issue should be raised promptly with the Court.
(b) The parties should confer on whether ESI stored in a database or a
11
discoverable information, resulting in a report or a reasonably usable and
exportable electronic file for review by the requesting counsel or party.
(c)
ESI and other tangible or hard copy documents that are not text-
searchable need not be made text-searchable.
(d)
Generally, the requesting party is responsible for the incremental cost
of creating its copy of requested information. Counsel or the parties are
encouraged to discuss cost sharing for optical character recognition (OCR) or
other upgrades of paper documents or non-text-searchable electronic images that
may be contemplated by each party.
3.01 Judicial Expectations of Counsel
Because discovery of ESI is being sought more frequently in civil litigation
and the production and review of ESI can involve greater expense than discovery of
paper documents, it is in the interest of justice that all judges, counsel, and parties
to litigation become familiar with the fundamentals of discovery of ESI. It is
expected by the judges adopting these Principles that all counsel will have done
the following in connection with each litigation matter in which they file an
appearance:
(1)
Familiarize
themselves
with
the
electronic
discovery
provisions of Federal Rules of Civil Procedure, including Rules 26,
12
33, 34, 37, and 45, as well as any applicable State Rules of Procedure;
(2)
Familiarize themselves with the Advisory Committee Report
on the 2006 Amendments to the Federal Rules of Civil Procedure,
available at:
http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/EDiscover
y_w_Notes.pdf; and
(3)
Familiarize themselves with these Principles.
3.02 Duty of Continuing Education
Judges, attorneys, and parties to litigation should continue to educate
themselves on electronic discovery by consulting applicable case law, pertinent
statutes, the Federal Rules of Civil Procedure, the Federal Rules of Evidence, The
Sedona Conference® publications relating to electronic discovery1, additional
materials available on web sites of the courts2, and of other organizations3 providing
education information regarding the discovery of ESI4.
3.03 Non-Waiver of Attorney-Client Privilege or Work Product Protection
As part of their duty to cooperate during discovery, the parties are expected
to discuss whether the costs and burdens of discovery, especially ESI, may be
1
www.thesedonaconference.org/
E.g., www.ilnd.uscourts.gov/home/
3
E.g., www.discoverypilot.com, www.fjc.gov (Under Educational Programs and materials)
4
E.g., www.du.edu.legalinstitute
2
13
reduced by entering into a non-waiver agreement pursuant to Fed. R. Evid. 502(e).
The parties also should discuss whether to use computer-assisted search
methodology to facilitate pre-production review of ESI to identify information that
is beyond the scope of discovery because it is attorney-client privileged or work
product-protected.
3.04 Discovery From Nonparties
Parties issuing requests for ESI from nonparties should attempt to
informally meet and confer with the nonparty (or counsel, if represented). During
this meeting, counsel should discuss the same issues with regard to requests for
ESI that they would with opposing counsel as set forth above. If an agreement
cannot be reached with the nonparty, the standards outlined above will apply
generally to the discovery of ESI sought pursuant to Rule 45.
3.05 Additional ESI Specifications
The parties will submit a Stipulated Discovery Plan relating to ESI review
and production on a future date, which will be determined by the Court.
Dated: January 31, 2014
s/Robert H. Cleland
Hon. Robert H. Cleland
14
Agreed as to form:
OAKLAND LAW GROUP, PLLC
RIVENOAK LAW GROUP, P.C.
s/Mr. Darin J. LeBeau
38955 Hills Tech Dr.
Farmington Hills, MI 48331
(248) 560-0198
darin@oaklandlawgroup.com
P54875
s/Catherine T. Dobrowitsky(with
permission)
101 W. Big Beaver Rd., Suite 1400
Troy, MI 48084
(248) 677-1045
ctd@rivenoaklaw.com
P63245
Attorneys for Plaintiffs
INT’L. IP HOLDINGS, LLC et al.
Attorneys for Defendant,
GREEN PLANET, INC.
LAUSON & TARVER, LLP
Robert J. Lauson
880 Apollo St., Suite 301
El Segundo, CA 90245
(310) 726-0892
bob@lauson.com
15
1
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?