Hoffman v. One Technologies, LLC

Filing 30

AGREEMENT REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION AND ORDER re parties' 28 Stipulation, signed by Judge Robert S. Lasnik. (SWT)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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MARK HOFFMAN, on his own behalf
and on behalf of other similarly situated
persons ,

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Plaintiff,

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v.

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ONE TECHNOLOGIES, LLC,

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The parties hereby stipulate to the following provisions regarding the discovery

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AGREEMENT
REGARDING
DISCOVERY OF
ELECTRONICALLY
STORED
INFORMATION AND
ORDER

Defendant.

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CASE NO. 16-01006-RSL

of electronically stored information (“ESI”) in this matter:
A.
1.

General Principles
An attorney’s zealous representation of a client is not compromised by conducting

discovery in a cooperative manner. The failure of counsel or the parties to litigation to cooperate
in facilitating and reasonably limiting discovery requests and responses raises litigation costs and
contributes to the risk of sanctions.
2.

The proportionality standard set forth in Fed. R. Civ. P. 26(b)(1) must be applied in

each case when formulating a discovery plan. To further the application of the proportionality
standard in discovery, requests for production of ESI and related responses should be reasonably
targeted, clear, and as specific as possible.

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1 B.

ESI Disclosures

2 Within 14 days after the entry of this order, each party shall disclose:
3 1.

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

4 custody or control. The custodians shall be identified by name, title, connection to the instant
5 litigation, and the type of the information under his/her control.
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Non-custodial Data Sources. A list of non-custodial data sources (e.g. shared drives,

7 servers, etc.), if any, likely to contain discoverable ESI.
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Third-Party Data Sources. A list of third-party data sources, if any, likely to contain

9 discoverable ESI (e.g. third-party email and/or mobile device providers, “cloud” storage, etc.)
10 and, for each such source, the extent to which a party is (or is not) able to preserve information
11 stored in the third-party data source.
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Inaccessible Data. A list of data sources, if any, likely to contain discoverable ESI

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

Preservation of ESI

17 The parties acknowledge that they have a common law obligation to take reasonable and
18 proportional steps to preserve discoverable information in the party’s possession, custody or
19 control. With respect to preservation of ESI, the parties agree as follows:
20 1.

Absent a showing of good cause by the requesting party, the parties shall not be

21 required to modify the procedures used by them in the ordinary course of business to back-up
22 and archive data; provided, however, that the parties shall preserve all discoverable ESI in their
23 possession, custody or control.
24 2.

All parties shall supplement their disclosures in accordance with Rule 26(e) with

25 discoverable ESI responsive to a particular discovery request or mandatory disclosure where that
26 data is created after a disclosure or response is made (unless excluded under (C)(3) or (D)(1)-

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1 (2) below).
2 3.

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

3 ESI need not be preserved:
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a.

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

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b.

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

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c.

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 lastopened 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.

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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15 D.

Privilege

16 1.

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

17 complaint, parties are not required to include any such information in privilege logs.
18 2.

Activities undertaken in compliance with the duty to preserve information are protected

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

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

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

Search methodology. The parties shall timely attempt to reach agreement on

4 appropriate search terms, or an appropriate computer- or technology-aided methodology, before
5 any such effort is undertaken. The parties shall continue to cooperate in revising the
6 appropriateness of the search terms or computer- or technology-aided methodology.
7 In the absence of agreement on appropriate search terms, or an appropriate computer- or
8 technology-aided methodology, the following procedures shall apply:
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a.

A producing party shall disclose the search terms or queries, if any, and

10 methodology that it proposes to use to locate ESI likely to contain discoverable information. The
11 parties shall meet and confer to attempt to reach an agreement on the producing party’s search
12 terms and/or other methodology.
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b.

If search terms or queries are used to locate ESI likely to contain

14 discoverable information, a requesting party is entitled to no more than 5 additional terms or
15 queries to be used in connection with further electronic searches absent a showing of good cause
16 or agreement of the parties. The 5 additional terms or queries, if any, must be provided by the
17 requesting party within 14 days of receipt of the producing party’s production.
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c.

Focused terms and queries should be employed; broad terms or queries,

19 such as product and company names, generally should be avoided.
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d.

The producing party shall search both non-custodial data sources and ESI

21 maintained by the custodians identified above.
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3.

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

23 searchable text, in a format to be decided between the parties. Acceptable formats include, but are
24 not limited to, native files, single-page TIFFs (only with load files for e-discovery software that
25 includes metadata fields identifying natural document breaks and also includes companion OCR
26 and/or extracted text files), and searchable PDF. Unless otherwise agreed to by the parties, files

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1 that are not easily converted to image format, such as spreadsheet, database and drawing files,
2 should be produced in native format.
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a.

Each document image file shall be named with a unique Bates Number (e.g.

4 the unique Bates Number of the page of the document in question, followed by its file extension).
5 For documents produced as single-page TIFF files, the parties shall produce their information in
6 the following format: single- page images and associated multi-page text files containing extracted
7 text or with appropriate software load files containing all requisite information for use with the
8 document management system (e.g., Concordance®) as agreed to by the parties.
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b.

The parties shall consider whether or not the full text of each electronic

10 document with extractable text shall be extracted ("Extracted Text") and produced in a text file.
11 If the parties so agree, the Extracted Text shall be provided in searchable ASCII text format (or
12 Unicode text format if the text is in a foreign language) and shall be named with a unique Bates
13 Number (e.g. the unique Bates Number of the first page of the corresponding production version
14 of the document followed by its file extension).
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c.

If a document is more than one page, the unitization of the document and

16 any attachments and/or affixed notes shall be maintained as they existed in the original
17 document.
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d.

The parties may produce hard-copy documents in an electronic format. The

19 production of hard-copy documents in a TIFF format shall include a cross-reference file that
20 indicates document breaks and sets forth the Custodian or Source associated with each produced
21 document. Hard-copy documents shall be scanned using Optical Character Recognition
22 technology and searchable ASCII text files shall be produced (or Unicode text format if the text
23 is in a foreign language), unless the producing party can show that the cost would outweigh the
24 usefulness of scanning (for example, when the condition of the paper is not conducive to scanning
25 and will not result in accurate or reasonably useable/searchable ESI). Each file shall be named
26 with a unique Bates Number (e.g. the Unique Bates Number of the first page of the corresponding

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1 production version of the document followed by its file extension). With a showing of good cause,
2 a party receiving production of a hard-copy document may compel production of an electronic
3 copy of the document.
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4.

De-duplication.

The parties may de-duplicate their ESI production across

5 custodial and non-custodial data sources after disclosure to the requesting party.
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5.

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

7 the following metadata fields need be produced: begin bates number; end bates number; begin
8 attachment bates number; end attachment bates number; document type; custodian; duplicate
9 custodians; author/from; recipient/to, cc and bcc; title/subject; file name and size; original file
10 path; date and time created, date and time sent, date and time modified, and/or date and time
11 received; and hash value.
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DATED: June 27, 2017

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/s/ Albert H. Kirby _______
Albert H. Kirby, WSBA #40187
SOUND JUSTICE LAW GROUP PLLC
936 North 34th Street, Suite 300
Seattle, Washington 98103
Tel: [phone]
Fax: [phone]
Email: [e-mail]

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Attorneys for Plaintiff
/s/ Ari N. Rothman
Ari N. Rothman, Pro Hac Vice
Danielle E. Sunberg, Pro Hac Vice
VENABLE, LLP
575 7th Street N.W.
Washington, DC 20004
Tel: [phone]
Email: [e-mail]
[e-mail]

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Kim Williams, WSBA #9077
Rob Williamson, WSBA #26759
WILLIAMSON & WILLIAMS
2239 West Viewmont Way West
Seattle, Washington 98199
Tel: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]

Craig S. Sternberg, WSBA #521
STERNBERG THOMSON OKRENT
& SCHER PPLC
520 Pike Street, Ste. 2250
Seattle, WA 98101
Tel: [phone]
Fax: [phone]
Email: [e-mail]

Attorneys for Defendant

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ORDER

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Based on the foregoing, IT IS SO ORDERED.

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DATED: June 28, 2017

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A
Robert S. Lasnik

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United States District Judge

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