HCI Distribution, Inc. et al v. Peterson et al
Filing
51
ORDER - The Parties' Stipulation (Filing No. 50 ) is approved and adopted. Ordered by Magistrate Judge Susan M. Bazis. (LKO)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
HCI DISTRIBUTION, INC.; and ROCK
RIVER MANUFACTURING, INC.,
Case No. 8:18-CV-173
Plaintiff,
ORDER
v.
DOUGLAS PETERSON, Nebraska
Attorney General; and TONY FULTON,
Nebraska Tax Commissioner,
Defendants.
Plaintiffs HCI Distribution, Inc. and Rock River Manufacturing, Inc., and Defendants
Douglas Peterson and Tony Fulton (collectively the “Parties”), through their respective Counsel
of Record, have agreed to a protocol for production of electronically stored information (“ESI”)
and paper documents in this action. (Filing No. 50.)
The Parties’ Stipulation (Filing No. 50) is approved and adopted.
Accordingly,
IT IS ORDERED:
I.
SCOPE
A. General. The procedures and protocols set forth in this Order shall govern the
production of ESI and paper documents in this matter, unless the Parties agree in
writing to change them or they are changed by the Court.
B. Disputes. Before filing any discovery motion regarding the production of ESI or
paper documents, the Parties shall follow the procedures set forth in the Local Rules
and the Court’s individual practices for handling discovery disputes, including any
issues that arise under this Order or otherwise.
II.
DEFINITIONS
A. “Electronically stored information” or “ESI,” as used herein, means and refers to
computer generated or stored information or data, residing in or on any storage
media located on computers, file servers, disks, tape, USB drives, or other real or
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virtualized devices or media, as such information is defined in the Federal Rules of
Civil Procedure, including Rule 34(a).
B. "Document” or “Documents" refers to ESI and paper documents in every form or
source in which such ESI or paper document exists or in which you possess or
control it, including without limitation computer or electronic files stored on file
servers, e-mail servers, work stations, desktops, hard drives, personal digital
assistants (PDAs), smartphones (e.g., “Blackberrys,” “IPhones,” “Droids”), tablets
(e.g., iPads) and other mobile electronic devices, or other electronic social or
industrial/business web-based media (e.g., Facebook®, Twitter®, LinkedIn®
Instagram®, Snapchat®, Cluster); records, data, reports, and queries derived from
or residing in applications and databases, data compilations from which
information can be derived, converted, or translated into reasonably usable form;
legacy media such as CDs, DVDs, magnetic tape, microfiche, as well as audio tapes
or recordings, or video tapes or recordings.
C. “Native Format” means and refers to the format of ESI in which it was generated
and/or as used by the Producing Party in the usual course of its business and in its
regularly conducted activities.
D. “Media” means an object or device, including but not limited to a disc, tape,
computer or other device, whether or not in the Producing Party’s physical
possession, on which data is or was stored.
E. ESI and paper documents are in your “constructive possession, custody, care, or
control” if they reside physically or digitally on your premises, and also if they
reside at the facilities of or on the servers or other devices of third parties such as
“cloud” providers, document storage facilities, back up sites, and other entities with
whom you contract to maintain or house your ESI and paper documents.
F. “Producing Party” means or refers to a Party in this matter from which production
of ESI or paper documents is sought.
G. “Requesting Party” means or refers to a Party in this matter seeking production of
ESI or paper documents.
H. "The Parties" means or refers to all Parties.
III.
COST CONTAINMENT AND SEARCH PROTOCOL
A. Search Proposals. To further contain costs and reduce the volume of ESI that is
not relevant to the matter, the Parties agree to follow the process and time frame
outlined below for discussing and agreeing upon the use of search criteria, including
reasonable search terms; technology assisted review; and date ranges to identify
relevant ESI for review and production.
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The fact that a document has been retrieved by application of agreed upon search
criteria shall not prevent any Party from withholding from production such
document on the ground that it is not responsive to a document request, that it is
privileged, or on the basis of other permissible objections.
Notwithstanding the foregoing, to the extent any Party separately identifies
responsive ESI or paper documents not identified by the use of agreed upon search
criteria, all such non-privileged documents must be produced, subject to the Parties’
objections to discovery requests.
The Parties shall abide by the following schedule:
1. Within 30 days of the signing of this Order, the Plaintiffs shall provide the
information detailed in sections (i) through (v) below in relation to
productions already made.
2. Within 30 days after the service of subsequent document requests, the
Plaintiffs shall provide the information detailed in sections (i) through (v)
in relation to each set of document requests.
3. Within 60 days after the service of document requests upon the Defendants,
the Parties shall meet and confer to discuss the scope of discovery
concerning custodians and sources to be searched, along with search criteria
such as search terms and date ranges.
4. Information to be provided:
i. Custodians: An initial list of custodians likely to possess relevant
documents and ESI, along with each custodian’s job title and a brief
summary of his/her primary responsibilities.
ii. Search and date criteria: A list of search terms (including
semantic synonyms, code words, acronyms, slang, abbreviations,
non-language alphanumeric associational references to relevant
ESI, etc.) that the Producing Party proposes to use, and other
proposed exclusion criteria (including, but not limited to, date
restrictions).
iii. Sources: A list of the sources of ESI that the Producing Party
intends to search for responsive ESI, along with a list of other
sources that may contain responsive ESI but which the Party does
not intend to search because the sources are not reasonably
accessible due to undue burden or cost. If a Producing Party
contends that it has such sources, the Producing Party shall briefly
describe:
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a. the general nature of such information (financial, sales,
personnel, inventory);
b. the reason(s) why the information is considered not
reasonably accessible;
c. The actions and cost required to identify and restore the
information deemed not reasonably accessible;
d. If the Requesting Party intends to seek such sources
identified as not reasonably accessible, the Parties shall
promptly (a) attempt to reach an agreement as to how they
will proceed with retrieval and production, or, if an
agreement cannot be reached, (b) present the dispute to the
Court for resolution pursuant to the Local Rules and the
Court’s individual practices.
iv. Organizational charts. Any existing organizational charts relating
to departments within its organization in which (a) any of the
custodians referred to in step (4)(i) above work, or (b) custodians
expected to have relevant documents work.
v. Search and analytic software: The Producing Party will identify
the software, program or application that it intends to use to search
and collect ESI. If the Producing Party intends to use technology
assisted review (“TAR”), it must first identify the software and/or
vendor that it plans to use and submit a detailed description of the
methodology it plans to employ, including statistical benchmarks.
The parties will meet and confer to agree upon the procedure to be
employed in relation to TAR.
5. Within (15) days after each date set forth in subsections (III)(A)(1), (2) and
(3) above, the Parties shall begin to meet and confer regarding the lists
detailed in subsection (III)(A)(4)(i)-(v) above, as well as any other issues
related to the disclosures.
6. Within 60 days after each date set forth in subsections (III)(A)(1), (2) and
(3), the Parties shall exchange final lists of custodians, search terms, and
date ranges.
7. A Producing Party that proposes to eliminate search terms initially
identified and agreed upon may propose to exclude such terms after
conducting the searches and performing statistical sampling, provided,
however, that the Producing Party must first provide to the Requesting Party
the underlying “hit rate data” (i.e., total number of documents searched,
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number of aggregate hits, number of unique hits, etc.) relating to such search
terms. The Parties will meet and confer to reach agreement on the exclusion
of search terms based on statistical sampling.
8. Disputes regarding custodians, search terms, and date ranges remaining at
this time shall be submitted to the court pursuant to the process identified in
the Local Rules and the Court’s individual practices.
9. This ESI protocol does not address or resolve any other objection to the
scope of the Parties’ respective discovery requests, and it does not prevent
any Party from undertaking searches of its own ESI for any purpose at any
time. However, upon locating responsive ESI from such searches that has
not yet been produced, the party must reasonably supplement its production
and disclose any search criteria that brought forth that responsive ESI.
B. De-duplication of Production. De-duplication shall be performed as outlined in
Exhibit B, attached.
C. Cost Shifting. The Plaintiffs shall bear all costs of producing documents as
specified in this Order, and shall waive the right to seek reimbursement or taxing
of such costs pursuant to 28 U.S.C. § 1920, or any other state or federal costrecovery provision.
IV.
PRODUCTION
A. ESI Production Format. Production of ESI shall be in accordance with Exhibits
A and B, attached, and the following:
1. Native Format or Alternative Format. All original documents shall be
produced in Native Format unless otherwise indicated by the Requesting
Party. A Party may request production of particular original documents in
an alternative format, and approval shall not be unreasonably withheld.
2. Appearance and Content. No document may be intentionally manipulated
to change how the source document would have appeared if printed out
without prior agreement between the Parties except as necessary to redact
privileged or confidential information.
3. Electronically Stored Information in Proprietary Database Format.
Where ESI exists in a proprietary database format the Parties shall export
from the original database production-worthy information in a format
compatible with Microsoft Excel, or the parties will meet and confer to
discuss whether queries or reports will satisfy the production request, and if
so, the fields that will be queried.
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4. Structured data. To the extent a response to discovery requires production
of ESI contained in a database, in lieu of producing the database, the Parties
agree to meet and confer to, discuss which fields are relevant, agree upon a
set of queries to be made for discoverable information or upon the sets of
data or fields to be included, and generate a report in a reasonably usable
and exportable electronic file (e.g., Excel or .csv format).
B. Family Relationships of Electronic Files. Parent-child relationships between ESI
(e.g., the association between an attachment and its parent e-mail, or a spreadsheet
embedded within a word processing document), must be preserved by assigning
sequential Bates numbers to all files within a parent-child group, and by providing
“BegAttach” and “EndAttach” fields (or the functional equivalent).
C. Confidentiality of Produced ESI. If a document is produced subject to a claim
that it is protected from disclosure, the word “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL” shall be burned electronically on each page of such document.
For ESI produced in Native Format, the TIFF placeholder for the native file shall
include the designation “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL,” or
where not produced with a TIFF placeholder, the storage device (e.g., CD, USB, or
hard drive) containing such native ESI data shall be labeled with the designation
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.
D. Third-Party Software. To the extent ESI produced pursuant to this Order cannot
be rendered or viewed without the use of proprietary third-party software, the
Parties shall cooperate and seek to attempt to minimize any expense or burden
associated with production of such ESI. The Parties shall meet and confer to
address obtaining access to any such software and operating manuals which are the
property of a third party. The Producing Party will not be under any obligation to
produce commercially available third-party software or proprietary manuals to the
Requesting Party.
E. Data Maintained by a Third-Party. To the extent ESI produced pursuant to this
Order cannot be accessed directly by a Party and where the ESI data is maintained
by a third-party, the Parties shall cooperate and seek to attempt to minimize any
expense or burden associated with production of such ESI.
V.
DESIGNATED ESI LIAISON
Each Party shall designate an individual(s) to act as e-discovery liaison(s) for purposes
of meeting, conferring, and attending court hearings on the subject (“Designated ESI
Liaison”). The Designated ESI Liaison must:
A. be prepared to participate in e-discovery discussions and dispute resolution;
B. be knowledgeable about the Party’s e-discovery efforts;
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C. be, or have reasonable access to those who are, familiar with the Party’s electronic
systems and capabilities in order to explain those systems 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.
VI.
PAPER DISCOVERY
Paper, or hard-copy, discovery is to be produced as specified in Exhibit B, which is
found at Filing No. 50-2 herein.
Dated: June 5, 2019.
BY THE COURT:
s/ Susan M. Bazis
United States Magistrate Judge
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