Johnson v. Lowen Corporation et al

Filing 12

ORDER denying 10 Discovery Plan. The court orders the parties to file a new proposed discovery plan as outlined. PRETRIAL CONFERENCE CANCELLED. So Ordered by Magistrate Judge Landya B. McCafferty.(ko)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE

Douglas Johnson
v.

Civil No. 12-cv-268-LM

Lowen Corporation
NOTICE OF RULING
Re:

Document No. 10, Proposed Discovery Plan

The parties’ proposed discovery plan (doc. no. 10) is not
approved. The court orders the parties to file a new proposed
discovery plan for the two reasons explained below.
1. Electronic Discovery
First, the parties’ statement regarding electronic discovery is
inadequate. Rule 26(f)(3)(C) requires that a plan “must”
include the parties’ views on electronic discovery “including
the form or forms in which it should be produced . . . .” The
parties’ proposed discovery plan includes nothing about any
agreement(s) with respect to electronic discovery, stating
instead that “Production format hereunder shall be in Portable
Document Format (.pdf), CD’s or other means unless otherwise
discussed and agreed which follows the rules of ESI.” More is
required under the rule.
Accordingly, the parties are ordered to meet and confer and
file, on or before October 1, 2012, a new discovery plan that
outlines more specifically their plans/agreements with respect
to electronic discovery. The court refers the parties to the
following outline of potential issues to discuss:
a. Preservation. Counsel should attempt to agree on steps
the parties will take to segregate and preserve ESI in
order to avoid accusations of spoliation.
b. E-mail Information. Counsel should attempt to agree on
the scope of e-mail discovery and e-mail search
protocol.

c. Back-up and Archival Data. Counsel should attempt to
agree on whether responsive back-up and archival data
exists, the extent to which back-up and archival data is
reasonably accessible, and who will bear the cost of
obtaining such data.
d. Format and Media. Counsel should attempt to agree on the
format and media to be used in the production of ESI,
and whether production of some or all ESI in paper form
is agreeable in lieu of production in electronic format.
e. Reasonably Accessible Information and Costs. Counsel
should attempt to determine if any responsive ESI is not
reasonably accessible, i.e., is accessible only by
incurring undue burdens or costs.
f. Privileged or Trial Preparation Materials. Counsel also
should attempt to reach agreement regarding what will
happen in the event privileged or trial preparation
materials are inadvertently disclosed. See Fed. R. Evid.
502.
2.

Class Certification Issues

Second, the discovery plan does not account for the class
certification process (e.g., hearings, motions, or expert
witnesses on class certification). The new proposed discovery
plan should expressly address class certification issues or
explain why the proposed plan properly accounts therefor.
In light of the court's rejection of the parties' proposed
discovery plan, the pretrial conference currently scheduled to
occur on September 11, 2012, is rescheduled for October 12, 2012
at 10:00 a.m.

__________________________
Landya McCafferty
United States Magistrate Judge
Date: September 10, 2012
cc: Thomas J. Lyons, Esq.
Douglas W. Macdonald, Esq.
Roger B. Phillips, Esq.
2