Lohr v. Nissan North America, Inc et al

Filing 55

STIPULATION AND ORDER REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION signed by Judge Ricardo S Martinez. (PM)

THE HONORABLE RICARDO S. MARTINEZ

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

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TAMARA LOHR and RAVIKIRAN SINDOGI,
on behalf of themselves and all others similarly
situated,

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STIPULATION REGARDING
DISCOVERY OF
ELECTRONICALLY STORED
INFORMATION AND ORDER

Plaintiffs,

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vs.

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NO. 2:16-cv-01023-RSM

NISSAN NORTH AMERICA, INC., and
NISSAN MOTOR CO., LTD.,

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Defendants.

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I. STIPULATION

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The parties hereby stipulate to the following provisions regarding the discovery of
electronically stored information (“ESI”) in this matter:
A.

General Principles
1.

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

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STIPULATION REGARDING DISCOVERY OF
ELECTRONICALLY STORED INFORMATION AND
ORDER - 1
CASE NO. 2:16-CV-01023-RSM

TERRELL MARSHALL LAW GROUP PLLC
936 North 34th Street, Suite 300
Seattle, Washington 98103-8869
TEL. [phone]  FAX [phone]
www.terrellmarshall.com

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proportionality standard in discovery, requests for production of ESI and related responses

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should be reasonably targeted, clear, and as specific as possible.

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B.

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ESI Disclosures
Within 45 days after the filing of the parties’ Stipulation Regarding Discovery of

Electronically Stored Information, each party shall disclose to the other:

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1.

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

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

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

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2. Non-custodial Data Sources. A list of non-custodial data sources (e.g. shared drives,
servers, databases, etc.), if any, likely to contain discoverable ESI.

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

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discoverable ESI (e.g. third-party email and/or mobile device providers, cloud-based storage,

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cloud-based applications, cloud-based databases, social media accounts, messaging

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applications, etc.) and, for each such source, the extent to which a party is (or is not) able to

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preserve information stored in the third-party data source.

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

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(by type, date, custodian, electronic system or other criteria sufficient to specifically identify

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the data source) that a party asserts is not reasonably accessible under Fed. R. Civ. P.

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26(b)(2)(B). Data sources listed below in Section C(3)(a) need not be included on this list.

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C.

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

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and proportional steps to preserve discoverable information in the party’s possession, custody

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or control. With respect to preservation of ESI, the parties agree as follows:

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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

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STIPULATION REGARDING DISCOVERY OF
ELECTRONICALLY STORED INFORMATION AND
ORDER - 2
CASE NO. 2:16-CV-01023-RSM

TERRELL MARSHALL LAW GROUP PLLC
936 North 34th Street, Suite 300
Seattle, Washington 98103-8869
TEL. [phone]  FAX [phone]
www.terrellmarshall.com

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and archive data; provided, however, that the parties shall preserve all discoverable ESI in their

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possession, custody or control.

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2.

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

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discoverable ESI responsive to a particular discovery request or mandatory disclosure where

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that data is created after a disclosure or response is made (unless excluded under (C)(3) or

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(D)(1)-(2) below).

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3.

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

categories of ESI need not be preserved:
a.

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

b.

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

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.

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f.

Server, system or network logs.

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g.

Data remaining from systems no longer in use that is unintelligible on the
systems in use and where there is no reasonable or proportional way to convert
the data to a universal format such as CSV, XLSX, TXT, SQL, XML, etc.

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).

i.

Text messages, instant messages, and voicemail not retained in the ordinary
course of business.

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STIPULATION REGARDING DISCOVERY OF
ELECTRONICALLY STORED INFORMATION AND
ORDER - 3
CASE NO. 2:16-CV-01023-RSM

TERRELL MARSHALL LAW GROUP PLLC
936 North 34th Street, Suite 300
Seattle, Washington 98103-8869
TEL. [phone]  FAX [phone]
www.terrellmarshall.com

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D.

Privilege
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a.

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Claims of Privilege:
Where a document is withheld from production pursuant to a claim of

attorney-client privilege or work-product protection, :
(i)

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The attorney asserting the privilege shall identify the nature of
the privilege (including work product) being claimed; and

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(ii)

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The following information shall be provided in a privilege log,
unless divulging such information would cause disclosure of the

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allegedly privileged information:

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(a)

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The date of the document; and

(d)

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The general subject matter of the document;

(c)

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The type of document, e.g., letter or memorandum;

(b)

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Such other information as is sufficient to identify the
document, including, where provided, the author of the

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document, the addressees of the document, and any other

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recipients shown in the document, with legal personnel

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designated by asterisk;

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b.

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Privilege logs will be provided on a rolling basis, with the first log

provided within 45 days of the first production and the final log within 45 days of the last
production.
c.

Legal personnel shall be identified as such by adding an asterisk after

their names in the privilege log.
d.

For a chain of privileged emails, the Producing Party need include only

one entry on the privilege log for the entire email chain and need not log each email contained
in the chain separately. The privilege log entry for the email chain needs to provide in the
applicable privilege log fields (1) the Bates number for the entire email chain, (2) the author,
recipient(s), copyee(s), and subject line for the last-in-time email, and (3) the privilege log
STIPULATION REGARDING DISCOVERY OF
ELECTRONICALLY STORED INFORMATION AND
ORDER - 4
CASE NO. 2:16-CV-01023-RSM

TERRELL MARSHALL LAW GROUP PLLC
936 North 34th Street, Suite 300
Seattle, Washington 98103-8869
TEL. [phone]  FAX [phone]
www.terrellmarshall.com

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entry will disclose all third parties on the string that may not be reflected in the metadata, with

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legal personnel designated by asterisk.

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2.

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

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

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Redactions from produced documents also are not required to be logged provided the reason for

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the redaction appears on the redaction label (e.g., Privileged, Work Product).

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3.

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).
4.

When a producing party gives notice to receiving parties that certain

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inadvertently produced material is subject to a claim of privilege or of protection as trial-

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preparation material, the obligations of the receiving parties are those set forth in Fed. R. Civ.

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P. 26(b)(5)(B), and its production shall not constitute a waiver of such protection in this matter

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or any other federal or state proceeding, if: (i) such information appears on its face to have been

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inadvertently produced or (ii) the producing party provides notice within 15 days of discovery

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by the producing party of the inadvertent production.

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E.
ESI Discovery Procedures
On-site inspection of electronic media. Such an inspection shall not be permitted absent a
demonstration by the requesting party of specific need and good cause or by agreement of the
parties.

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1.

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

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

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any such effort is undertaken. The parties shall continue to cooperate in revising the

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appropriateness of the search terms or computer- or technology-aided methodology.

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2.

The parties have agreed to search terms and will meet and confer regarding

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plaintiffs’ request, if any, for additional search terms after productions based on the original set

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of search terms have been made. Such request shall be pursuant to the terms of subparagraphs

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STIPULATION REGARDING DISCOVERY OF
ELECTRONICALLY STORED INFORMATION AND
ORDER - 5
CASE NO. 2:16-CV-01023-RSM

TERRELL MARSHALL LAW GROUP PLLC
936 North 34th Street, Suite 300
Seattle, Washington 98103-8869
TEL. [phone]  FAX [phone]
www.terrellmarshall.com

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3.c and 3.d. Part of this meet and confer process may involve providing information to assess

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the burden and to determine appropriate edits to the proposed search term list.

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3.

In the absence of agreement on appropriate search terms, or an appropriate

computer- or technology-aided methodology, the following procedures shall apply:
a.

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

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methodology that it proposes to use to locate ESI likely to contain discoverable information.

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The parties shall meet and confer to attempt to reach an agreement on the producing party’s

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search terms and/or other methodology.

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b.

Upon reasonable request and if appropriate for this case, a producing

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party shall also disclose information relating to network design, the types of databases,

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database dictionaries, the access control list and security access logs and rights of individuals to

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access the system and specific files and applications, the ESI document retention policy,

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organizational chart for information systems personnel, or the backup and systems recovery

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routines, including but not limited to, tape rotation and destruction/overwrite policy.

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c.

If search terms were used to locate ESI likely to contain discoverable

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information, a requesting party is entitled to no more than 5 additional terms or queries to be

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used in connection with further electronic searches absent a showing of good cause or

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agreement of the parties. The parties shall confer in good faith on the 5 additional queries. The

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5 additional terms or queries, if any, must be provided by the requesting party within 30 days of

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receipt of the producing party’s production.

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d.

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

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such as product and company names, generally should be avoided. Absent a showing of good

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cause, each search term or query returning more than 250 megabytes of data is presumed to be

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overbroad, excluding Microsoft PowerPoint files, color images, audio/video files, and similarly

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large file types.

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STIPULATION REGARDING DISCOVERY OF
ELECTRONICALLY STORED INFORMATION AND
ORDER - 6
CASE NO. 2:16-CV-01023-RSM

TERRELL MARSHALL LAW GROUP PLLC
936 North 34th Street, Suite 300
Seattle, Washington 98103-8869
TEL. [phone]  FAX [phone]
www.terrellmarshall.com

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e.

The producing party shall search both non-custodian data sources and

ESI maintained by the custodians identified above.
4.

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

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party with searchable text, in a format to be decided between the parties. The parties shall meet

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and confer regarding reliable methods for converting the data for production. Plaintiff

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specifically requests a load file that includes .DAT and .OPT files in addition to corresponding

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single-paged TIFFs, extracted text and OCR. Unless otherwise agreed to by the parties, files

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that are not easily converted to image format, such as spreadsheets and media files, should be

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produced in native format. Documents produced in native file format will be named with a

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Bates number and, where applicable, a confidentiality designation. When possible, extracted

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text should be provided for any documents produced in native file format. Documents should

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be produced with natural document breaks so that it is apparent where each document begins

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and ends. Separate documents should not be combined for purposes of production into one

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contained image file. Documents that are locked by a password or encrypted as they are kept in

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the ordinary course of business shall be produced in a form that is unlocked or decrypted or

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with passwords under separate cover, provided the producing party is able to unlock or decrypt

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the document using reasonable and proportional means.

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5.

The parties shall meet and confer regarding production format of databases and

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other structured data sources before their production. The parties will work to identify an

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appropriate format that will allow the requesting party to use and search the data in a

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meaningful way, such as an already existing and reasonably available report, or an export from

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the original database of discoverable information in a format compatible with Microsoft Excel

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or Microsoft Access produced in native format. A producing party shall neither be obligated to

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create and/or produce a copy of the database, nor provide another party with access to the

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database, unless good cause is shown (after the parties meet and confer) that other means of

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obtaining the data in a usable format are not available.

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STIPULATION REGARDING DISCOVERY OF
ELECTRONICALLY STORED INFORMATION AND
ORDER - 7
CASE NO. 2:16-CV-01023-RSM

TERRELL MARSHALL LAW GROUP PLLC
936 North 34th Street, Suite 300
Seattle, Washington 98103-8869
TEL. [phone]  FAX [phone]
www.terrellmarshall.com

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6.

The parties agree that ESI will be produced to the requesting party in the format

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set forth in Section E(4). Productions that are smaller than five gigabytes may be produced

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through an FTP site. Productions larger than five gigabytes will be produced on industry

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standard media such as external hard drives or “thumb drives.”

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7.

De-duplication. The parties will undertake reasonable efforts to de-duplicate

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their ESI production across custodial and non-custodial data sources. To “de-duplicate” across

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custodians means that exact duplicates of documents held and produced by a particular

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custodian, as identified by MD5 or SHA1 hash values, but also residing with another custodian,

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will not be produced twice. The parties may de-duplicate identical e-mails using MD5 or SHA1

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hash technology, across custodians to reduce or suppress e-mail thread duplicates. To suppress

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an email as a “thread duplicate,” it must be wholly contained in the later, surviving email, and

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have all the same recipients and attachments.

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8.

Metadata fields. The parties agree to produce the following metadata fields,

where applicable and available:
FIELD NAME

DESCRIPTION

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BEGDOC

The starting Bates number of the document

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ENDDOC

The ending Bates number of the document

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BEGATTACH

If the document is an attachment, this is the starting
Bates number of the parent document (i.e.-the document
it is attached to)

ENDATTACH

If the document is an attachment, this is the ending Bates
number of the parent document

TO

The name of the recipient(s)

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FROM

The name of the sender(s)

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CC

The document is electronic mail or correspondence, the
identity of the person or entity who received a copy

BCC

If the document is electronic mail or correspondence, the
identity of the person or entity who received a blind copy

DATESENT

If the document is electronic mail or correspondence, the
date the document was sent

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STIPULATION REGARDING DISCOVERY OF
ELECTRONICALLY STORED INFORMATION AND
ORDER - 8
CASE NO. 2:16-CV-01023-RSM

TERRELL MARSHALL LAW GROUP PLLC
936 North 34th Street, Suite 300
Seattle, Washington 98103-8869
TEL. [phone]  FAX [phone]
www.terrellmarshall.com

FIELD NAME

DESCRIPTION

DATERECEIVED

If the document is electronic mail or correspondence, the
date the document was received

SUBJECT

The subject of the document, typically included with
correspondence and memoranda

FILENAME

The original name of the native file

EXTENSION

The application extension of the native file, for example:
.doc, .xls, .docx, .xlsx, .mdb, .txt

CREATEDATE

The date the document was created

LASTMODIFIED

The date the document was last modified

PAGECOUNT

The number of pages in the document

CUSTODIAN

The name of the custodian from whom the document
was obtained

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ALL CUSTODIANS

Custodian(s) that possess duplicate copies of the
document

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MD5HASH (or
SHA1HASH)

The unique numerical identifier of the document

NATIVEPATH

The path within the load file structure to the native file, if
a native file produced

CONFIDENTIAL

Whether or not the document is labeled designated as
confidential pursuant to a protective order

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9.

Best Efforts Compliance. The parties agree to use their best efforts to comply

with and resolve any differences concerning compliance with any provision/s of the
Agreement. If a producing party cannot comply with any aspect of the Agreement, such party
shall inform the requesting party in writing before the time of production why compliance with
the Agreement is unreasonable or not possible. No party may seek relief from the Court
concerning compliance with the Agreement until it has met and conferred with the other party
pursuant to those Rules requiring a good faith effort to resolve or narrow the area of
disagreement.

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STIPULATION REGARDING DISCOVERY OF
ELECTRONICALLY STORED INFORMATION AND
ORDER - 9
CASE NO. 2:16-CV-01023-RSM

TERRELL MARSHALL LAW GROUP PLLC
936 North 34th Street, Suite 300
Seattle, Washington 98103-8869
TEL. [phone]  FAX [phone]
www.terrellmarshall.com

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RESPECTFULLY SUBMITTED AND DATED this 22nd day of January, 2018.

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STIPULATION REGARDING DISCOVERY OF
ELECTRONICALLY STORED INFORMATION AND
ORDER - 10
CASE NO. 2:16-CV-01023-RSM

TERRELL MARSHALL LAW GROUP PLLC
936 North 34th Street, Suite 300
Seattle, Washington 98103-8869
TEL. [phone]  FAX [phone]
www.terrellmarshall.com

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TERRELL MARSHALL LAW
GROUP PLLC

SHOOK HARDY & BACON L.L.P.

By:

By: /s/ Heather A. Hedeen, WSBA #50687
Heather A. Hedeen, WSBA #50687
Email: [e-mail]
701 Fifth Avenue, Suite 6800
Seattle, Washington 98104
Telephone: [phone]
Facsimile: [phone]

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/s/ Beth E. Terrell, WSBA #26759
Beth E. Terrell, WSBA #26759
Email: [e-mail]
Amanda M. Steiner, WSBA #29147
Email: [e-mail]
Brittany A. Madderra, WSBA #48514
Email: [e-mail]
936 North 34th Street, Suite 300
Seattle, Washington 98103-8869
Telephone: [phone]
Facsimile: [phone]
Gregory F. Coleman,
Admitted Pro Hac Vice
Email: [e-mail]
Lisa A. White, Admitted Pro Hac Vice
Email: [e-mail]
Mark E. Silvey, Admitted Pro Hac Vice
Email: [e-mail]
GREG COLEMAN LAW PC
First Tennessee Plaza
800 South Gay Street, Suite 1100
Knoxville, Tennessee 37929
Telephone: [phone]
Facsimile: [phone]
Charles Crueger, Admitted Pro Hac Vice
Email: [e-mail]
Erin Dickinson, Admitted Pro Hac Vice
Email: [e-mail]
CRUEGER DICKINSON LLC
4532 North Oakland Ave.
Whitefish Bay, Wisconsin 53211
Telephone: [phone]

Amir Nassihi, Admitted Pro Hac Vice
Email: [e-mail]
Andrew L. Chang,
Admitted Pro Hac Vice
Email: [e-mail]
SHOOK HARDY & BACON L.L.P.
One Montgomery Street, Suite 2700
San Francisco, California 94104
Telephone: [phone]
Facsimile: [phone]
William R. Sampson,
Admitted Pro Hac Vice
Email: [e-mail]
Holly P. Smith, Admitted Pro Hac Vice
Email: [e-mail]
SHOOK HARDY & BACON L.L.P.
2555 Grand Boulevard
Kansas City, Missouri 64108
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant Nissan North
America, Inc.

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Edward A. Wallace,
Admitted Pro Hac Vice
STIPULATION REGARDING DISCOVERY OF
ELECTRONICALLY STORED INFORMATION AND
ORDER - 11
CASE NO. 2:16-CV-01023-RSM

TERRELL MARSHALL LAW GROUP PLLC
936 North 34th Street, Suite 300
Seattle, Washington 98103-8869
TEL. [phone]  FAX [phone]
www.terrellmarshall.com

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Email: [e-mail]
Adam Prom, Admitted Pro Hac Vice
Email: [e-mail]
WEXLER WALLACE LLP
55 West Monroe Street, Suite 3300
Chicago, Illinois 60603
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiffs

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II. ORDER
IT IS SO ORDERED.
Dated this 22 day of January 2018.

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A

RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

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STIPULATION REGARDING DISCOVERY OF
ELECTRONICALLY STORED INFORMATION AND
ORDER - 12
CASE NO. 2:16-CV-01023-RSM

TERRELL MARSHALL LAW GROUP PLLC
936 North 34th Street, Suite 300
Seattle, Washington 98103-8869
TEL. [phone]  FAX [phone]
www.terrellmarshall.com