Mullen v. Shinseki

Filing 28

ORDER granting 27 motion for an order regarding electronic discovery and a Rule 502(d) order. Ordered by Magistrate Judge Cheryl R. Zwart. (CRZ)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
HUNTER MULLEN, III,
Plaintiff,
v.
ERIC K. SHINSEKI, Secretary of the
Department of Veterans Affairs,
Defendant.

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CASE NO. 4:11CV3021

ORDER AND STIPULATION
REGARDING DISCOVERY
PROCEDURE

WHEREAS, the Parties mutually seek to reduce the time, expense and other burdens of
discovery of certain electronically stored information and privileged materials, as described
further below, and to better define the scope of their obligations with respect to preserving such
information and materials;
WHEREAS, the Parties therefore are entering into this Stipulation with the request that
the Court enter it as an Order;
NOW THEREFORE, the Parties stipulate as follows:
A.

Electronically Stored Information.
1.

Preservation Not Required for Not Reasonably Accessible Electronic
Information.
a.

Except as provided in subparagraph b below, the Parties need not preserve

the following categories of electronic information 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, including backup tapes stored at the Hines, Illinois, VA Data
Center;
ii.

Voicemail messages, except the Government will preserve any

voicemails VA employee Deborah Carlson may have regarding Plaintiff or his
case;
iii.

Instant messages such as messages sent on AOL Instant Messenger

or Microsoft Communicator, except the Government will preserve any instant
messages VA employee Deborah Carlson may have regarding Plaintiff or his
case;
iv.

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

except the Government will preserve any text messages VA employee Deborah
Carlson may have regarding Plaintiff or his case;
v.

Electronic mail sent to or from a Personal Digital Assistant or

smartphone (e.g., BlackBerry Handheld) provided that a copy of such mail is
routinely saved elsewhere;
vi.

Other electronic data stored on a Personal Digital Assistant 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.

Temporary or cache files, including internet history, web browser

cache and cookie files, wherever located;
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x.

Server, system or network logs;

xi.

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, and
xii.

Individual VA Patient medical records on the Veterans Health

Information Systems & Technology Architecture (VISTA) database.
b.

Notwithstanding subparagraph a. above, if on the date of this agreement

either Party has a policy established by management that results in the routine
preservation of any of the categories of information identified in subparagraph a, such
Party shall continue to preserve such information in accordance with its policy.
However, the Parties shall have no obligation, in response to general discovery requests,
to search for, produce, or create privilege logs for electronically stored information
covered by this subparagraph b.
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 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
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its face to another document, but has small detectable differences in the metadata, shall be
considered an identical copy.
3.

No Discovery of Material Not Required To Be Preserved. The Parties will not

seek discovery of items that need not be preserved pursuant to paragraphs A.1-2 above. If any
discovery request is susceptible of a construction which calls for the production of items that
need not be preserved pursuant to paragraphs A.1-2, such items need not be provided or
identified on a privilege log pursuant to Fed. R. Civ. P. 26(b)(5). The parties further agree that
individual VA patient medical records on the VISTA database are not subject to discovery, other
than those documents contained in hard copy with redactions, in agency files.
4.

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. Except as otherwise
provided in paragraphs A.1.b and A.2, nothing in this Stipulation shall alter the obligations of the
Parties to provide a privilege log for material withheld under a claim of privilege.
5.

Format for Production: The Parties stipulate to the following methods of

production:
a.

Paper documents: At the Producing Party’s discretion, documents

maintained in paper format may be produced on paper or may be produced as
independent, text searchable (scanned at 300 dpi), multi-page PDF files and produced on
CD-ROM1, DVD-ROM, USB Thumb drive, or external hard drive. Whether produced in
hard copy or as PDF files, each page shall be branded with a unique Bates number, which
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CD-ROMs need to be formatted using ISO 9660 specifications (not “packet burn” or
“drag to disk” format).
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shall not be an overlay of the image.
b.

At the producing party’s discretion, word processing files (i.e. Word or

WordPerfect) will be produced in native file format or converted to multi-page PDF files
and produced consistent with the specifications in paragraph A.5.a;
c.

E-mail and attachments maintained electronically should be produced in

Outlook .PST file format, Outlook .MSG file format, Lotus Notes .NFS file format, or
ASCII text file format. Alternatively, e-mail and attachments may be electronically
converted to multi-page PDF files and produced consistent with the specification in
paragraph A.5.a, preserving the following data fields: To, From, CC, BCC, Subject, Date,
Time and Body. If not produced in native format, attachments shall be processed as
separate documents and follow the original e-mail in sequence;
d.

Excel or other spreadsheets, Access databases, and digital photographs

will be produced in native file format in a separate folder on the production media;
e.

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

f.

The Parties will meet and confer concerning production of other items, if

any, including databases (other than Access), CAD drawings, GIS data, videos, etc.; and
g.

Defendant shall have the custodians of electronically stored information

(ESI) self-collect their emails and other requested documents regarding this case, with
the support of IT staff as needed. The parties agree that collection of e-mails maintained
in Outlook by “drag and drop” to a .PST data file is sufficient.
6.

Other Preservation Obligations Not Affected. Nothing in this agreement 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
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anticipated litigation.
7.

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

regarding electronic discovery or evidence, the Parties will meet and confer in a good faith
attempt to resolve such disputes.
B.

Protection of Privileges.
1.

The Parties agree that this Stipulation and Order from the Court invokes the

protections afforded by Rule 502 of the Federal Rules of Evidence.
2.

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

to disclose large quantities of information and documents, including electronically stored
information, through the discovery process. As a result, record-by-record preproduction privilege
may 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, but may 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 14 days of such
determination give all 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
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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 five (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 will 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.
7.

Pursuant to Federal Rule of Evidence 502(d), the disclosure of privileged

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

Privileged Materials of the Offices of Counsel. The Parties agree that, in response to

discovery requests, the Parties need not search for and produce, nor create a privilege log for,
any privileged material which is generated by or sent to an attorney, paralegal, or other employee
of the offices of the U.S. Department of Justice or the law firm of Perry, Guthery, Haase &
Gessford, P.C., L.L.O.
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D.

Costs of Document Production. Each Party shall bear the costs of producing its own

documents required under Fed. R. Civ. P. 26(a). The parties will consult and, if appropriate,
seek an order from the Court, regarding costs of producing documents in response to a Party
seeking discovery under Fed. R. Civ. P. 26(b), 30(b)(2)(subpoena duces tecum) and 34 (request
for production). This does not preclude a party from seeking costs as allowed under NECivR
54.1 and the “Bill of Costs Handbook” after judgment.
E.

Expert Discovery.
The Parties shall bear the costs of their own testifying experts in responding to discovery,

and not require the Party seeking discovery to pay the other Party’s testifying expert any fee for
the time spent in responding to discovery, with two exceptions. The first exception is that the
Party seeking a deposition of the other Party’s testifying expert shall pay the expert’s costs of
such a deposition (excluding preparation time). The second exception is that a party may seek
costs as allowed under NECivR 54.1 and the “Bill of Costs Handbook” after judgment.
HUNTER MULLEN, III, Plaintiff
BY:

ERIC K. SHINSEKI, Secretary of the United
States Department of Veterans Affairs,
Defendant,

PERRY, GUTHERY, HAASE
& GESSFORD, P.C., L.L.O.

By:
BY:

And:

s/ Corey L. Stull
Corey L. Stull, NE Bar # 21336
233 South 13th Street, Suite 1400
Lincoln, NE 68508
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]

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DEBORAH R. GILG
United States Attorney
District of Nebraska

s/ Lynnett M. Wagner
LYNNETT M. WAGNER, #21606
Assistant U.S. Attorney
1620 Dodge Street, Suite 1400
Omaha, NE 68102-1506
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]

Upon the court's review of the parties' discovery agreement, (as set forth above),
including their agreement regarding the application of Rule 502 to their discovery processes,

IT IS ORDERED:

In accordance with Rule 502(d) of the Federal Rules of Evidence and the authority
granted therein, the terms of the parties' discovery agreement are hereby ordered and
enforceable against the parties herein and all persons in federal and state proceedings,
including third parties.

July 15, 2011

BY THE COURT:

______________________________
United States Magistrate Judge