Aurora Cooperative Elevator Company v. Aventine Renewable Energy - Aurora West, LLC

Filing 147

MEMORANDUM AND ORDER - After conferring with the parties on the record:1) The defendant's motion to restrict, (Filing No. 138 ), is granted, and its responsive brief, (Filing No. 139 ), shall remain filed as a restricted access document.2) The plaintiff's Motion to Compel Aventine to Search for and Produce Email Records, (Filing No. 104 ), is granted under the terms discussed on the record, (Filing No. 146 ), and as set forth in this order. 3) A telephonic conference with the undersigned magistrate judge will be held on March 26, 2014 at 12:00 p.m. (noon), to discuss the parties' forensic expert selection. 4) The plaintiff's Motion for Reconsideration, (Filing No. 94 ), and its Objection to Ma gistrate Judge's Order, (Filing No. 95 ), are denied without prejudice to re-filing after the primary stage of discovery in this case is complete.5) The deadlines within the amended progression order, (Filing No. 91 ), including the trial and pretrial conference dates, are set aside pending further order of the court.Ordered by Magistrate Judge Cheryl R. Zwart. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
AURORA COOPERATIVE ELEVATOR
COMPANY,
4:12CV230
Plaintiff,
vs.

MEMORANDUM AND ORDER

AVENTINE RENEWABLE ENERGY AURORA WEST, LLC, AVENTINE
RENEWABLE ENERGY HOLDINGS,
INC.,
Defendants.
After conferring with the parties on the record:

IT IS ORDERED:

1)

The defendant’s motion to restrict, (Filing No. 138), is granted, and its

responsive brief, (Filing No. 139), shall remain filed as a restricted access document.

2)

The plaintiff’s Motion to Compel Aventine to Search for and Produce

Email Records, (Filing No. 104), is granted under the terms discussed on the record,
(Filing No. 146), and as set forth in this order.

a)

Discovery will be conducted in stages beginning with the primary issue
defined as follows:
Whether the Aurora West Ethanol Plant was ready for startup, fully
operational, and capable of producing 110 million gallons of ethanol
per year as of July 1, 2012.

b)

For at least this first discovery stage, the parties shall consult with a
computer forensic expert to create search protocols, including predictive

coding as needed, for a computerized review of the parties’ electronic
records. It is highly foreseeable that the forensic expert will need to confer
with not only the parties’ counsel, but representatives of the parties to
develop an accurate and predictable search protocol. Assuming this occurs,
all statements (whether written or oral) made by the parties’ representatives
during their discussions and conference on developing electronic discovery
plans or protocols are deemed confidential and shall not be admissible in
evidence for any reason in the trial of this case.

The confidentiality

afforded under this provision does not preclude admissibility of the
information disclosed by the party representatives if:
i.
the information was also disclosed or discovered outside the
context of the parties’ electronic discovery conference and
discussions; and/or
ii.
the parties’ statements are relevant on issues unrelated
to the underlying merits of this case, such as a motion for
sanctions or for assessment and allocation of the costs and
attorney fees incurred in locating and producing electronic
discovery.
c)

The parties shall fully cooperate to identify key records custodians and to
not only identify a subset of known relevant documents for assistance in
identifying search terms and creating a search protocol as to that known
subset of documents, but also the universe of documents relevant to the
primary issue identified in paragraph 2 of this order.

d)

Subject to the modifications and explanations of intent stated by the parties
on the record during today’s hearing, (Filing No. 146), the topics relevant
to the primary issue identified in paragraph 2 are outlined in Filing No.
144-1 under the headings “MTV Retrofit Project;” “MTV Lessons
Learned,” “Timetable for Completion and Startup of Aurora West,” “110
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MGPY Requirement,” “Communications with Third Parties,” “Problems in
Completion and Startup of Aurora West,” and “Post Shutdown Activities.”

e)

The parties shall immediately confer to mutually agree upon and select a
forensic expert for assistance in developing and completing the electronic
discovery review and production for this case.

3)

A telephonic conference with the undersigned magistrate judge will be held

on March 26, 2014 at 12:00 p.m. (noon), to discuss the parties’ forensic expert selection.
If the parties have not agreed on an expert, the court will make the selection. The court
will provide call in information for this conference call.

4)

The plaintiff’s Motion for Reconsideration, (Filing No. 94), and its

Objection to Magistrate Judge’s Order, (Filing No. 95), are denied without prejudice to
re-filing after the primary stage of discovery in this case is complete.

5)

The deadlines within the amended progression order, (Filing No. 91),

including the trial and pretrial conference dates, are set aside pending further order of the
court.

March 10, 2014.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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