Alaskan Protein Recovery, LLC et al v. PureTek Corporation

Filing 37

AGREEMENT REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION AND ORDER by Judge Richard A Jones. (TF)

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Honorable Richard A. Jones

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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ALASKA PROTEIN RECOVERY, LLC,
an Alaskan LLC; TRIDENT SEAFOODS
CORPORATION, a Washington
corporation,
Plaintiffs,

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AGREEMENT REGARDING
DISCOVERY OF
ELECTRONICALLY STORED
INFORMATION AND ORDER

v.

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No. 2:13-cv-01429-RAJ

PURETEK CORPORATION, a California
corporation,

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Defendant.

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The parties hereby stipulate to the following provisions regarding the discovery of

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electronically stored information (“ESI”) in this matter:

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A.

General Principles

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1. An attorney’s zealous representation of a client is not compromised by

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conducting discovery in a cooperative manner. The failure of counsel or the parties to

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litigation to cooperate in facilitating and reasonably limiting discovery requests and

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responses raises litigation costs and contributes to the risk of sanctions.

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2. The proportionality standard set forth in Fed. R. Civ. P. 26(b)(2)(C) must be

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applied in each case when formulating a discovery plan. To further the application of the
LAW OFFICES OF

AGREEMENT REGARDING DISCOVERY OF
ELECTRONICALLY STORED INFORMATION – Page 1

MCNAUL EBEL NAWROT & HELGREN PLLC
600 University Street, Suite 2700
Seattle, Washington 98101-3143
[phone]

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proportionality standard in discovery, requests for production of ESI and related responses
should be reasonably targeted, clear, and as specific as possible.
B.

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Within 30 days after the Rule 26(f) conference, or at a later time if agreed to by the
parties, each party shall disclose:

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1.

connection to the instant litigation, and the type of the information under his/her control.
2.

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3.

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Third-Party Data Sources. A list of third-party data sources, if any, likely to

contain discoverable ESI (e.g. third-party email and/or mobile device providers, “cloud”
storage, etc.) and, for each such source, the extent to which a party is (or is not) able to
preserve information stored in the third-party data source.

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Non-custodial Data Sources. A list of non-custodial data sources

(e.g. shared drives, servers, etc.), if any, likely to contain discoverable ESI.

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Custodians. The five custodians most likely to have discoverable ESI in

their possession, custody or control. The custodians shall be identified by name, title,

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ESI Disclosures

4.

Inaccessible Data. A list of data sources, if any, likely to contain

discoverable ESI (by type, date, custodian, electronic system or other criteria sufficient to
specifically identify the data source) that a party asserts is not reasonably accessible under
Fed. R. Civ. P. 26(b)(2)(C)(i).
C.

Preservation of ESI
The parties acknowledge that they have a common law obligation to take

reasonable and proportional steps to preserve discoverable information in the party’s
possession, custody or control. With respect to preservation of ESI, the parties agree as
follows:
1.

Absent a showing of good cause by the requesting party, the parties shall

not be required to modify the procedures used by them in the ordinary course of business
to back-up and archive data; provided, however, that the parties shall preserve all
LAW OFFICES OF

AGREEMENT REGARDING DISCOVERY OF
ELECTRONICALLY STORED INFORMATION – Page 2

MCNAUL EBEL NAWROT & HELGREN PLLC
600 University Street, Suite 2700
Seattle, Washington 98101-3143
[phone]

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discoverable ESI in their possession, custody or control. All parties shall supplement their
disclosures in accordance with Rule 26(e) with discoverable ESI responsive to a particular
discovery request or mandatory disclosure where that data is created after a disclosure or
response is made (unless excluded under (C)(2) or (D)(1)-(2) below).

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2.

Absent a showing of good cause by the requesting party, the following

categories of ESI need not be preserved:

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a.

On-line access data such as temporary internet files, history, cache,
cookies, and the like.

d.

Data in metadata fields that are frequently updated automatically, such as
last-opened dates (see also Section (E)(5)).

e.

Back-up data that are substantially duplicative of data that are more
accessible elsewhere.

f.

Server, system or network logs.

g.

Data remaining from systems no longer in use that is unintelligible on the
systems in use.

h.

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Random access memory (RAM), temporary files, or other ephemeral data
that are difficult to preserve without disabling the operating system.

c.

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Deleted, slack, fragmented, or other data only accessible by forensics.

b.

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Electronic data (e.g. email, calendars, contact data, and notes) sent to or
from mobile devices (e.g., iPhone, iPad, Android, and Blackberry devices),
provided that a copy of all such electronic data is routinely saved elsewhere
(such as on a server, laptop, desktop computer, or “cloud” storage).

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D.

Privilege
1.

With respect to privileged or work-product information generated after the

filing of the complaint, parties are not required to include any such information in
privilege logs.
2.

Activities undertaken in compliance with the duty to preserve information

are protected from disclosure and discovery under Fed. R. Civ. P. 26(b)(3)(A) and (B).
3.

Information produced in discovery that is protected as privileged or work

product shall be immediately returned to the producing party, and its production shall not
LAW OFFICES OF

AGREEMENT REGARDING DISCOVERY OF
ELECTRONICALLY STORED INFORMATION – Page 3

MCNAUL EBEL NAWROT & HELGREN PLLC
600 University Street, Suite 2700
Seattle, Washington 98101-3143
[phone]

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constitute a waiver of such protection, if: (i) such information appears on its face to have
been inadvertently produced or (ii) the producing party provides notice within 15 days of
discovery by the producing party of the inadvertent production.
E.

ESI Discovery Procedures
1.

permitted absent a demonstration by the requesting party of specific need and good cause
or by agreement of the parties.
2.

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before any such effort is undertaken. The parties shall continue to cooperate in revising
the appropriateness of the search terms or computer- or technology-aided methodology.
a.

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used, the producing party shall disclose the search methodology used to locate ESI likely
to contain discoverable information.
b.

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If search terms were used to locate ESI likely to contain

discoverable information, a requesting party is entitled to no more than 5 additional terms
or queries to be used in connection with further electronic searches absent a showing of
good cause or agreement of the parties. The parties shall confer in good faith on the
5 additional terms or queries. Focused terms and queries, rather than overbroad ones
(e.g., product and company names), should be employed.

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A producing party shall disclose what search terms, if any, were

used to locate ESI likely to contain discoverable information. If search terms were not

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Search methodology. The parties shall attempt to reach agreement on

appropriate search terms, or an appropriate computer- or technology-aided methodology,

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On-site inspection of electronic media. Such an inspection shall not be

c.

The producing party shall search both non-custodial data sources

and ESI maintained by the custodians identified above.
3.

Format. The parties agree that ESI will be produced to the requesting party

with searchable text, in a format to be decided between the parties. Acceptable formats
include, but are not limited to, native, TIFF (with a companion text file), and searchable
LAW OFFICES OF

AGREEMENT REGARDING DISCOVERY OF
ELECTRONICALLY STORED INFORMATION – Page 4

MCNAUL EBEL NAWROT & HELGREN PLLC
600 University Street, Suite 2700
Seattle, Washington 98101-3143
[phone]

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PDF. Unless otherwise agreed to by the parties, files that are not easily converted to image
format, such as spreadsheet, database and drawing files, should be produced in native
format.

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4.

custodial and non-custodial data sources after disclosure to the requesting party.

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De-duplication. The parties may de-duplicate their ESI production across

5.

Metadata fields. If the requesting party seeks metadata, the parties agree

that only the following metadata fields need be produced: document type; custodian and
duplicate custodians; author/from; recipient/to, cc and bcc; title/subject; file name and
size; original file path; date and time created, sent, modified and/or received; and hash
value.
DATED this 12th day of February, 2014.

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By: s/Michael D. Helgren
By: s/Timothy B. Fitzgerald
By: s/Daniel M. Weiskopf
Michael D. Helgren, WSBA No. 12186
Timothy B. Fitzgerald, WSBA No. 45103
Daniel M. Weiskopf, WSBA No. 44941
McNAUL EBEL NAWROT & HELGREN PLLC
600 University Street, Suite #2700
Seattle, WA 98101-3143
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiffs Alaska Protein Recovery,
Inc. and Trident Seafoods Corporation

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LAW OFFICES OF

AGREEMENT REGARDING DISCOVERY OF
ELECTRONICALLY STORED INFORMATION – Page 5

MCNAUL EBEL NAWROT & HELGREN PLLC
600 University Street, Suite 2700
Seattle, Washington 98101-3143
[phone]

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DATED this 12th day of February, 2014.

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s/Thomas F. Ahearne
s/Rylan L.S. Weythman
Thomas F. Ahearne, WSBA #14844
Rylan L.S. Weythman, WSBA #45352
FOSTER PEPPER PLLC
1111 Third Avenue, Suite 3400
Seattle, Washington 98101-3299
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
Attorneys for Defendant PureTek Corporation

ORDER
Based on the foregoing, IT IS SO ORDERED.
DATED this 21st day of February, 2014.

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A
The Honorable Richard A. Jones
United States District Judge

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LAW OFFICES OF

AGREEMENT REGARDING DISCOVERY OF
ELECTRONICALLY STORED INFORMATION – Page 6

MCNAUL EBEL NAWROT & HELGREN PLLC
600 University Street, Suite 2700
Seattle, Washington 98101-3143
[phone]