United States v University of Nebraska at Kearney

Filing 16

ORDER granting 15 Stipulation regarding Electronic Discovery.Ordered by Magistrate Judge Cheryl R. Zwart. (CRZ)

UNITED STATES DISTRICT COURT
DISTRICT OF NEBRASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
UNIVERSITY OF NEBRASKA AT
KEARNEY; BOARD OF REGENTS OF
THE UNIVERSITY OF NEBRASKA;
DAVID BRANDT; CHERYL
BRESSINGTON; CHRISTY HORN; and
GAIL ZELLER,
Defendants.
___________________________________

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CASE NO. 4:11CV3209

STIPULATION AND ORDER
REGARDING DISCOVERY

Plaintiff the United States of America and Defendants University of Nebraska at
Kearney, Board of Regents of the University of Nebraska, David Brandt, Cheryl Bressington,
Christy Horn, and Gail Zeller (collectively “Parties”), by and through their undersigned counsel,
mutually seek to reduce the time, expense and other burdens of discovery of documents, things
and electronically stored information (“ESI”). Therefore, the Parties are entering into this
Stipulation to govern discovery obligations in this action.
The Parties stipulate as follows:
1)

Obligations to Preserve
a.

Preservation of Documents, Things and ESI. All potentially relevant documents,

things, and ESI, other than those exempted from discovery in paragraph 5, created before or after
the date of entry of this Stipulation, must be preserved in accordance with the Federal Rules of
Civil Procedure (“FRCP”), the Federal Rules of Evidence, and the relevant controlling principles
of law.

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b.

“Draft Document(s)”. For the purposes of this litigation, the obligation to

preserve potentially relevant documents, things, and ESI extends to draft paper and electronic
documents, except as provided in paragraph 5. A “draft” document (hereinafter “Draft
Document”) for the purposes of this Stipulation and Order, means a preliminary version of a
document that has been shared by the author with another person (by email, print or otherwise)
or one that the author no longer intends to finalize or to share with another person. A Party need
not preserve a document before and after every change, so long as Draft Documents are
preserved.
c.

Red-lined and Marked-up Documents. For the purposes of this litigation, the

obligation to preserve potentially relevant documents, things, and ESI extends to red-lined or
marked-up electronic documents, except as provided in paragraph 5. This obligation extends to
both Draft Documents and finalized documents for which a red-lined or marked-up version
exists.
d.

Webpage Content. Each Party must preserve potentially relevant information that

it posts on the following web pages – http://www.unk.edu/ and pages contained therein. If
subsequent to the date of entry of this Stipulation, any of the parties create a webpage not listed
in this subparagraph, to which potentially relevant information is posted, that Party must
preserve said information. Information that must be preserved includes text, photos, audio files,
podcasts, and videos. Parties must be prepared to provide the date information is posted and
edited on the covered web pages. Parties need not preserve the visual formatting of its web
pages so long as it preserves the substantive information described above. The material can be
preserved in any readily accessible format, e.g. Microsoft Word.

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2)

Provisions for the Production of All Documents and ESI
a.

Form and Manner of Production of All Documents and ESI. Documents and ESI

that can be accurately represented in black and white shall be scanned or converted to single
page Tagged Image File Format (“TIFF” or “.tiff format”) files, using CCITT Group IV
compression. All images shall be scanned or converted at 300 d.p.i. and reflect, without visual
degradation, the full and complete information contained on the original document.
Photographs, color brochures, or other like documents that cannot be accurately represented in
black and white or documents that are primarily in color shall be scanned or converted to JPEG
files using a high quality setting. The parties will honor reasonable requests for either the
production of the original document for inspection and copying or production of any color image
of the document, thing or ESI. All images shall be saved in a directory named IMAGES. Native
files shall be saved in a directory named NATIVE with the proper Windows associated
extension.
b.

Bates Numbering. The Parties agree to produce all imaged documents with a

legible, unique page identifier (“Bates Number”) electronically “burned” onto the image in the
lower right hand corner or at a location that does not obliterate, conceal, or interfere with any
information from the source document. The Bates numbering convention shall be in the format
“XX########” where “XX” represents the short character abbreviation for the producing party
and “########” represents the eight-digit sequential number of the page being produced by that
party. Documents produced by the parties shall be abbreviated as follows: United States = US;
Defendant University of Nebraska at Kearney = UNK; the investigative file from the Department
of Housing and Urban Development = HUD. If any of the individual Defendants produces
documents separately from the University of Nebraska at Kearney, such documents shall be

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abbreviated as LASTNAME. If the Board of Regents of the University of Nebraska produces
documents separately from the University of Nebraska at Kearney, such documents shall be
abbreviated as “BOARD.” For example, the first Bates labeled document produced by the
United States should be labeled “US00000001”. Images shall be named as the Bates Number.tif
or Bates Number.jpg. Native files shall be named as Bates Number.ext.
c.

Production Media. The Parties agree to produce documents on CD-ROM, DVD,

or external hard drive, (the “Production Media”), depending on the volume of the production.
Each piece of Production Media shall identify a production number corresponding to the
production “wave” and a number of the volume of material in the wave. For example, if the first
production wave by a Party comprises document images on three hard drives, the Party shall
label each hard drive in the following manner in numeric sequence: “001.001”; “001.002”;
“001.003.” If the second production comprises three DVDs, the Party shall label each DVD in
the following manner in numeric sequence: “002.001”; 002.002”; “002.003.” Additional
information that shall be identified on the physical Production Media shall include: (1) the case
number, (2) the producing party’s name, and (3) the production date. The type of materials on
the media (e.g., “Documents”, “OCR Text”, etc.) and the Bates Number range(s) of the materials
on the Production Media shall also be contained on the Production Media, and where not
practicable to do so may be provided in an accompanying letter.
d.

Cross Reference File. The Parties shall produce a “cross reference file” in

Concordance Opticon .log format, to accompany the produced images. The cross reference file
shall list all images with the corresponding Bates Numbers and path information for links
between the images and, where appropriate, native files. The cross reference file shall include
information about where each document begins and ends, to facilitate the use of the produced

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images through Concordance. The Parties shall meet and confer to the extent reasonably
necessary to facilitate the import and use of the produced materials with Concordance.
e.

Load File. The Parties shall produce a “load file”, containing the delimiters

specified in Attachment A. The load file shall provide the image cross reference file with Bates
Numbers, relative path to images, and document break indicators. The load files shall be
provided in a directory named DATA, in a Concordance Opticon .log file format. Do not
include OCR/extracted text in the DAT file.
f.

OCR/Extracted Text. The Parties will produce corresponding Optical Character

Recognition (“OCR”) text files for all hard-copy documents and any electronic documents that
require redaction prior to production. For documents that exist natively in electronic format that
have not been redacted and that are produced as images, the Parties shall produce extracted text
files reflecting the full text that has been electronically extracted from the original, native
electronic files. The OCR and extracted text files shall be produced in ASCII text format and
shall be labeled and produced on Production Media in accordance with the provisions of
paragraph 2(c). These text files will be named with the unique Bates Number of the first page of
the corresponding document followed by the extension “.txt.” The OCR and extracted text files
shall be produced in a manner suitable for importing the information into Concordance. OCR
and extracted text files shall be saved in a directory named TEXT. All documents should have
an accompanying text file even if zero size.
g.

The meta data fields specified in Attachment A shall be provided in Concordance

.dat format with standard delimiters.

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h.

Irrespective of which Party issued the requests for production of documents,

things and ESI, the producing Party shall serve a copy of responsive production to each of the
other Parties.
i.

The parties will produce documents, things and ESI on a rolling basis so as to

provide each other with documents, things and ESI as expediently as possible.
3)

Electronically Stored Information
a.

Format for Production of Electronic Documents:
i.

E-mail will be produced as image files and in their original native file with
related searchable text and metadata (to the extent it exists) as described in
Attachment A. Emails shall be saved or converted to Outlook .MSG
format as the native file format.

ii.

All spreadsheets, e.g., Excel or Quattropro, and PowerPoint presentations
will be produced as image files and in their original native file with related
searchable text and metadata (to the extent it exists) as described in
Attachment A.

iii.

All other electronic documents not specifically discussed elsewhere will
be produced as image files and in their original native files with related
searchable text and metadata (to the extent it exists) as described in
Attachment A. If said documents in their original form cannot be
converted to TIFF as described above, the Parties promptly will meet and
confer concerning the form of such production.

iv.

Documents with children (e.g. emails with attachments, archive files such
as zip, and files with embedded documents) shall be treated as separate

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documents. Each document (parent and child) shall have the same
attachment range as a way of identifying the group as specified in the
Attachment Range filed of Attachment A.
v.

In the event that a Party needs to redact a portion of a document for which
only a native file is produced, e.g., Excel and PowerPoint, the Parties will
meet and confer regarding production of the redacted document.

vi.

Any encryption or password protection of any file is to be removed or the
passwords provided. If software is required to open encrypted files, the
Party producing the encrypted files must provide the software.

vii.

The Parties shall meet and confer regarding production of ESI contained
within a proprietary or specialized database.

b.

Search terms. The parties shall meet and confer about initial proposed search

terms. Either party may also propose custodians and date limitations for searches. Within ninety
days of when the parties agree on an initial set of search terms, the Parties shall conduct a further
meet and confer to determine whether modifications should be made to those search terms.
i.

Each Party shall be provided with an opportunity to propose additions or
amendments to the search procedures and terms;

ii.

The Parties acknowledge that the agreement to the use of such search
procedures and terms shall not be construed as a waiver of any Party’s
right to request subsequent searches and productions; particularly where
there is a showing that the agreed-to search terms and procedures have
resulted in inadequate productions or failed to identify relevant materials.

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The Parties reserve their right to object to any additional requests or
subsequent searches; and
iii.

Documents identified by search terms may be reviewed for privilege,
confidentiality, redactions and relevance or responsiveness prior to
production.

c.

Use of Deduplication Software: Parties agree to use MD-5 hash values to

deduplicate exact duplicate documents [across custodians] or [for each custodian]. As noted in
Attachment A, MD-5 hash values will be calculated at the time of collection or processing for all
categories of ESI.
4)

Production of Paper Documents:
a.

Format for Production of Paper Documents. The Parties agree to produce hard-

copy documents as TIFF files with related OCR text.
b.

Document Unitization. To the extent possible and on a going-forward basis, the

Parties will endeavor to apply unitization practices consistent with the following description:
Each page of a hard copy document shall be scanned into an image and if a document is more
than one page, the unitization of the document and any attachments shall be maintained as it
existed in the original when creating the image file. For documents that contain fixed notes,
(e.g., post-it notes), the pages will be scanned both with and without the notes and those pages
will be treated as part of the same document. The relationship of documents in a document
collection (e.g., cover letter and enclosures, email and attachments, binder containing multiple
documents, or other documents where a parent-child relationship exists between the documents)
shall be maintained through the scanning or conversion process. If more than one level of
parent-child relationship exists, documents will be kept in order, but all will be treated as

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children of the initial parent document. Such information shall be produced in conformity with
the Attachment Range field in Attachment A in a manner which enables the parent-child
relationship among documents in a document collection to be reconstituted by the receiving
party in Concordance.
5)

Preservation Not Required for Certain Documents, Things, and ESI
a.

ESI:
i.

The Parties agree that except as provided in paragraph 9, the Parties need
not preserve, continue to preserve, or provide a privilege log for the
following categories of ESI:
a. Voicemail messages;
b. Electronic mail, SMS messages or “pin to pin” messages sent to or
from a Personal Digital Assistant (e.g. Blackberry Handheld) provided
that a copy of electronic messages is saved in another reasonably
accessible location;
c. Other electronic data stored on a Personal Digital Assistant, such as
calendar or contact data or notes, provided that a copy of such
information is saved in another reasonably accessible location;
d. Logs of calls made to or from cellular phones1;
e. Temporary or cache files, including internet history, web browser
cache and cookie files, wherever located;
f. Server, system or network logs;

1

“Logs of calls” excludes history of calls, texts, and other communications from cellular phones
provided from a source other than the cellular phone such as those listed in cellular phone service
bills/invoices and/or those that may be produced to the parties by cellular phone providers.
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g. Data from photocopiers or fax machines;
h. Autosaved copies of electronic documents;
i. Delivery or read recipients of electronic mail;
j. Duplicate copies of an electronic message sent to multiple recipients
so long as the copy retained accurately reflects all recipients of the
email and the entire contents of the email, including all attachments.
ii.

Electronic Back-up Systems. Potentially relevant ESI, as that term is
defined in Rule 26 of the FRCP, need not be preserved or described on a
privilege log if the following three conditions are met:
a. It is stored 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; and
b. It is routinely purged, overwritten or otherwise made not reasonably
accessible in accordance with an established, documented, and routine
system maintenance policy; and
c. It has been preserved on other, accessible electronic media.

b.

Documents Created by, and Exchanged Solely Between and Among, Counsel for

the Respective Parties. The Parties agree that, for purposes of this litigation, the Parties need not
preserve, produce, or create a privilege log for any document, including Draft Documents, as
defined in paragraph 1(b), that were created by, and exchanged solely: 1) among attorneys or
staff within the United States Department of Justice; 2) between attorneys or staff of Baird Holm
LLP and employees or officers of Defendant Board of Regents of the University of Nebraska or

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Defendant University of Nebraska at Kearney, 3) between attorneys or staff of Baird Holm LLP
and any of the individually named Defendants; 4) between attorneys and staff of the United
States Department of Justice and attorneys and staff for the United States Department of Housing
and Urban Development; and 5) attorneys and staff of the United States Department of Justice
and Ms. Brittany Hamilton. This subparagraph shall not apply to documents described in this
subparagraph if a party presents evidence of or bases a claim or defense on advice or
investigation by counsel, counsel’s staff, or investigators or consultants hired by counsel.
c.

Trial-Preparation Protections for Communication Between a Party’s Attorney and

Expert Witness. Communication between a Party’s attorney and any witness required to provide
a report under Rule 26(a)(2)(B) of the FRCP shall be protected from disclosure and shall not be
produced in discovery regardless of the form of the communication, nor shall a privilege log be
produced for such communications, except to the extent provided by FRCP 26(a)(4).
d.

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

to seek discovery of documents, things, and ESI that need not be preserved pursuant to paragraph
5. If any discovery request is susceptible of a construction which calls for the production of ESI
that need not be preserved pursuant to paragraph 5, such items need not be provided or identified
on a privilege log pursuant to Rule 26(b)(5) of the FRCP.
6)

Other Preservation Obligations Not Affected. This Stipulation in no way modifies,

amends, limits, or obviates any of the Parties' obligation to maintain and preserve documents,
things, and ESI where required by law or as a result of litigation or anticipated litigation in this
case or in any other matter except for the exemptions delineated in paragraph 5. Also, nothing in
this Stipulation and Order shall affect any other obligations of the Parties to preserve documents,

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things, and ESI for other purposes, such as pursuant to court order, administrative order, statute,
or in response to other anticipated litigation.
7)

Preservation Does Not Affect Discoverability or Claims of Privilege. The Parties

agree that by preserving documents, things, and ESI for the purpose of this litigation, they are
not conceding that such material is discoverable, nor are they waiving any claim of privilege.
Except as otherwise provided in paragraph 5, nothing in this Stipulation shall alter the
responsibilities or obligations of the Parties to provide a privilege log for material withheld under
a claim of privilege.
8)

Privilege Logs. The Parties agree that for each document, thing, or ESI withheld based

on an asserted claim of privilege, the Party asserting the privilege must produce a privilege log
pursuant to Rule 26(b)(5)(a) of the FRCP, except as provided in paragraph 5. The privilege log
must contain the Bates Number, the type of document or ESI, whether the document or ESI
contains any attachments, the date, authors, recipients, copyees, privilege(s) claimed, the title of
the document or ESI, the purpose of the document or ESI and the basis for the claimed privileges
or protections with information sufficient to establish the elements of each asserted privilege.
An embedded email should be separately identified and logged. E-mail attachments should be
identified as attachments and separately logged.
9)

Existing Retention Policy. Notwithstanding subparagraph 5(a), if on the date of this

Stipulation, any Party that has a policy established by that Party’s official decision-making
authority responsible for the retention of documents, things, and ESI that results in the routine
preservation of any of the categories of information identified in paragraph 5(a), such Party shall
continue to preserve such information in accordance with its policy. However, the Parties shall

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have no obligation, in response to discovery requests, to identify, collect, produce, or create
privilege logs for documents, things, or ESI covered by paragraph 5(a).
10)

Sanctions. No Party shall seek sanctions pursuant to the FRCP, the contempt powers of

the Court, or any other authority, against another Party for the failure to preserve documents,
things, or ESI that is not required to be maintained pursuant to paragraph 5.
11)

Inadvertent Production of Documents:
a.

The Parties agree that a disclosure of communications, documents, things, and

ESI covered by the attorney-client privilege, work product protection or governmental privileges
does not operate as a waiver in this proceeding if:
i.

The disclosure is inadvertent and is made in connection with this litigation
or the underlying investigation; and

ii.

The holder of the privilege or protection took reasonable precautions to
prevent disclosure and took reasonably prompt measures, once the holder
knew or should have known of the disclosure, to rectify the error.

b.

If information produced in discovery is subject to a claim of privilege or

protection as referenced above, the Party making the claim may notify any Party that received
the information of the claim and the basis for it. After being notified, a Party must make prompt
and reasonable efforts to return, sequester, or destroy the specified information and any copies it
has; must not use or disclose the information until the claim is resolved; must take prompt and
reasonable steps to retrieve the information if the Party disclosed it before being notified; and
may promptly present the information to the court under seal for a determination of the claim.
The producing Party must preserve the information until the claim is resolved.

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12)

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

documents, things and ESI, absent extraordinary circumstances. Should a party believe such
circumstances exist, such party shall seek an order from the court to modify this paragraph.

Dated March 1, 2012

_s/Scott P. Moore (per email authorization)___
Scott Parrish Moore (NE# 20752)
of BAIRD HOLM LLP
1500 Woodmen Tower
1700 Farnam St
Omaha, NE 68102-2068
Phone: [phone]
Email: [e-mail]
and
Alison D. Basye (NE# 23337)
of UNIVERSITY OF NEBRASKA
Varner Hall
3835 Holdrege Street
Lincoln, NE 68583-0745
Phone: [phone]
Fax: [phone]
Email: [e-mail]
Attorneys for Defendants

Respectfully submitted,

_s/Mary J. Hahn_______________________
STEVEN H. ROSENBAUM2
Chief
REBECCA B. BOND
Deputy Chief
MARY J. HAHN
DC Bar No. 500193
Trial Attorney
Housing and Civil Enforcement Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue NW
Northwestern Building, 7th Floor
Washington, DC 20530
Phone: [phone]
Fax: [phone]
and
LAURIE A. KELLY
MA Bar No. 557575
Assistant United States Attorney
United States Attorney’s Office
District of Nebraska
1620 Dodge Street, Suite 1400
Omaha, NE 68102-1506
Phone: [phone]
Fax: [phone]
Attorneys for Plaintiff

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Steven Rosenbaum, Chief of the Housing and Civil Enforcement Section, and Deputy
Chief Rebecca Bond do not intend to receive electronic notifications in this matter.
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So ORDERED:

3/2/2012
DATE:_____________________

________________________________
The Hon. Cheryl R. Zwart
U.S. Magistrate Judge

15

Attachment “A” to Rule 26(f) Stipulation/Order: Metadata Fields

Name of Field

Type of
field

Begin_Bates

Text

End_Bates

Text

Attachment
Range

Text

E-mail

Word Processing
or PDFs
Bates number for Bates number for
the TIFF image
the TIFF image of
of the first page
the first page

Bates number for
the TIFF image
of the last page
Bates range
starting with the
first page of the
parent document
through the last
page of the last
attachment.
Blank if there are
no child
documents

Bates number for
the TIFF image of
the last page
Bates range
starting with the
first page of the
parent document
through the last
page of the last
attachment or
embedded file.
Included only if
part of a group of
documents like an
email or zip file.

Contents
Spreadsheets
Bates number for
the TIFF image of
the first page

Bates number for
the TIFF image of
the last page
Bates range
starting with the
first page of the
parent document
through the last
page of the last
attachment or
embedded file.
Included only if
part of a group of
documents like an
email or zip file.

Attachment A-1

Digital Photos

Paper

Bates number
branded onto a
TIFF file that has
the same
resolution as the
native image file.
Bates number
branded onto the
native image file
Bates range
starting with the
first page of the
parent document
through the last
page of the last
attachment or
embedded file.
Included only if
part of a group of
documents like an
email or zip file.

Bates number for
the TIFF image of
the first page

Bates number for
the TIFF image of
the last page
Bates range of all
documents that
were grouped
together/
physically attached
by clips, staples, or
binding or folder.
Blank if a single
non grouped
document

Name of Field

Type of
field

Custodian

Text

Author
To
CC
BCC
Subject
DateSent

Paragraph
Paragraph
Paragraph
Paragraph
Paragraph
Date

MD5Hash

Paragraph

Native_File

Paragraph

Responsive to

Text

E-mail
The name of the
person who had
primary control
over the location
from which the
document was
collected
“From” field
“To” field
“CC” field
“BCC” field
“Subject” field
The date and
time the message
was sent
The MD5 hash
value calculated
when the file
was collected or
processed.
<blank>

Document
request no for
which this
document is
responsive.

Word Processing
or PDFs
The name of the
person who had
primary control
over the location
from which the
document

Contents
Spreadsheets

Digital Photos

The name of the
person who had
primary control
over the location
from which the
document

The name of the
person who had
primary control
over the location
from which the
document

The name of the
person maintaining
the file from which
the paper was
obtained

<blank>
<blank>
<blank>
<blank>
<blank>
<blank>

<blank>
<blank>
<blank>
<blank>
<blank>
<blank>

<blank>
<blank>
<blank>
<blank>
<blank>
<blank>

<blank>
<blank>
<blank>
<blank>
<blank>
<blank>

The MD5 hash
value calculated
when the file was
collected or
processed.
The path to the
native file on the
production media

The MD5 hash
value calculated
when the file was
collected or
processed.
The path to the
native file on the
production media

The MD5 hash
value calculated
when the file was
collected or
processed.
<blank>

<blank>

Document request
no for which this
document is
responsive.

Document request
no for which this
document is
responsive.

<blank>

<blank>

Attachment A-2

Paper

<blank>

Blank field

Attachment A-3