BioPure Healing Products, LLC v. WellNX Life Sciences, Inc

Filing 59

STIPULATED ORDER Regarding Discovery of Electronically Stored Information re parties' 57 Agreement Regarding Discovery and ESI, signed by Hon. James P. Donohue. (SWT)

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HONORABLE JAMES P. DONOHUE 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 BIOPURE HEALING PRODUCTS, LLC, 10 Plaintiff, 11 v. 12 WELLNX LIFE SCIENCES, INC. and PLATINUM US DISTRIBUTION, INC. d/b/a 13 WELLNX LIFE SCIENCES, USA, 14 17 18 19 20 21 22 23 24 25 26 STIPULATED ORDER REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION Defendants. 15 16 C17-00470-RSL-JPD 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 proportionality standard in discovery, requests for production of ESI and related responses should be reasonably targeted, clear, and as specific as possible. ORDER - 1 1 B. 2 ESI Disclosures Within 30 days after the Rule 26(f) conference, or at a later time if agreed to by the 3 parties, each party shall disclose: 4 1. Custodians. The five custodians most likely to have discoverable ESI in their 5 possession, custody or control. The custodians shall be identified by name, title, connection to the 6 instant litigation, and the type of the information under his/her control. 7 2. Non-custodial Data Sources. A list of non-custodial data sources (e.g. shared 8 drives, servers, etc.), if any, likely to contain discoverable ESI. 9 3. Third-Party Data Sources. A list of third-party data sources, if any, likely to 10 contain discoverable ESI (e.g. third-party email and/or mobile device providers, “cloud” storage, 11 etc.) and, for each such source, the extent to which a party is (or is not) able to preserve information 12 stored in the third-party data source. 13 4. Inaccessible Data. A list of data sources, if any, likely to contain discoverable 14 ESI (by type, date, custodian, electronic system or other criteria sufficient to specifically 15 identify the data source) that a party asserts is not reasonably accessible under Fed. R. Civ. 16 P. 26(b)(2)(B). 17 C. 18 Preservation of ESI The parties acknowledge that they have a common law obligation to take reasonable and 19 proportional steps to preserve discoverable information in the party’s possession, custody or 20 control. With respect to preservation of ESI, the parties agree as follows: 21 1. Absent a showing of good cause by the requesting party, the parties shall not be 22 required to modify the procedures used by them in the ordinary course of business to back-up and 23 archive data; provided, however, that the parties shall preserve all discoverable ESI in their 24 possession, custody or control. 25 2. All parties shall supplement their disclosures in accordance with Rule 26(e) with 26 discoverable ESI responsive to a particular discovery request or mandatory disclosure where that ORDER - 2 1 data is created after a disclosure or response is made (unless excluded under (C)(3) or (D)(1)2 (2) below). 3 3. Absent a showing of good cause by the requesting party, the following categories 4 of ESI need not be preserved: a. 12 13 14 Data remaining from systems no longer in use that is unintelligible on the systems in use. h. 11 Server, system or network logs. g. 10 Back-up data that are substantially duplicative of data that are more accessible elsewhere. f. 9 Data in metadata fields that are frequently updated automatically, such as lastopened dates (see also Section (E)(5)). e. 8 On-line access data such as temporary internet files, history, cache, cookies, and the like. d. 7 Random access memory (RAM), temporary files, or other ephemeral data that are difficult to preserve without disabling the operating system. c. 6 Deleted, slack, fragmented, or other data only accessible by forensics. b. 5 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). 15 16 D. Privilege 17 1. With respect to privileged or work-product information generated after the filing 18 of the complaint, parties are not required to include any such information in privilege logs. 19 2. Activities undertaken in compliance with the duty to preserve information are 20 protected from disclosure and discovery under Fed. R. Civ. P. 26(b)(3)(A) and (B). 21 3. Information produced in discovery that is protected as privileged or work product 22 shall be immediately returned to the producing party, and its production shall not constitute a 23 waiver of such protection, if: (i) such information appears on its face to have been inadvertently 24 produced or (ii) the producing party provides notice within 15 days of discovery by the producing 25 party of the inadvertent production. 26 ORDER - 3 1 E. 2 ESI Discovery Procedures 1. On-site inspection of electronic media. Such an inspection shall not be permitted 3 absent a demonstration by the requesting party of a specific need and good cause or by 4 agreement of the parties. 5 2. Search methodology. The parties shall timely attempt to reach agreement on 6 appropriate search terms, or an appropriate computer- or technology-aided methodology, before 7 any such effort is undertaken. The parties shall continue to cooperate in revising the 8 appropriateness of the search terms or computer- or technology-aided methodology. 9 In the absence of agreement on appropriate search terms, or an appropriate computer- or 10 technology-aided methodology, the following procedures shall apply: 11 a. A producing party shall disclose the search terms or queries, if any, and 12 methodology that it proposes to use to locate ESI likely to contain discoverable information. The 13 parties shall meet and confer to attempt to reach an agreement on the producing party’s search 14 terms and/or other methodology. 15 b. If search terms or queries are used to locate ESI likely to contain 16 discoverable information, a requesting party is entitled to no more than 5 additional terms or 17 queries to be used in connection with further electronic searches absent a showing of good cause 18 or agreement of the parties. The 5 additional terms or queries, if any, must be provided by the 19 requesting party within 14 days of receipt of the producing party’s production. 20 c. Focused terms and queries should be employed; broad terms or queries, 21 such as product and company names, generally should be avoided. Absent a showing of good 22 cause, each search term or query returning more than 250 megabytes of data are presumed to be 23 overbroad, excluding Microsoft PowerPoint files, image and audio files, and similarly large file 24 types. 25 d. The producing party shall search both non-custodial data sources and ESI 26 maintained by the custodians identified above. ORDER - 4 1 3. Format. The parties agree that ESI will be produced to the requesting party with 2 searchable text, in a format to be decided between the parties. Acceptable formats include, but are 3 not limited to, native files, multi-page TIFFs (with a companion OCR or extracted text file), 4 single-page TIFFs (only with load files for e-discovery software that includes metadata fields 5 identifying natural document breaks and also includes companion OCR and/or extracted text 6 files),and searchable PDF. Unless otherwise agreed to by the parties, files that are not easily 7 converted to image format, such as spreadsheet, database and drawing files, should be produced 8 in native format. 9 4. De-duplication. The parties may de-duplicate their ESI production across 10 custodial and non-custodial data sources after disclosure to the requesting party. 11 5. Metadata fields. If the requesting party seeks metadata, the parties agree that only 12 the following metadata fields need be produced: document type; custodian and duplicate 13 custodians; author/from; recipient/to, cc and bcc; title/subject; file name and size; original file 14 path; date and time created, sent, modified and/or received; and hash value. 15 16 17 18 SEED IP LAW GROUP LLP 24 BY: /s/ Marc C. Levy Marc C. Levy, WSBA No. 19203 Thomas A. Shewmake, WSBA No. 50765 701 Fifth Avenue, Suite 5400 Seattle, WA 98104 Telephone: (206) 622-4900 Facsimile: (206) 682-6031 E-mail: E-mail: Attorneys for Plaintiff 25 DATED: August 23, 2017 19 20 21 22 23 26 ORDER - 5 BY: /s/ Stephen J. Kennedy Stephen J. Kennedy, WSBA No. 16341 18214 13th Place West Lynwood, WA 98037 Telephone: (206) 484-1310 E-mail: Attorney for Defendants DATED: August 23, 2017 EPSTEIN DRANGEL LLP 1 BY: /s/ Jason M. Drangel Jason M. Drangel (JD 7204) Ashly E. Sands (AS 7715) Kerry B. Brownlee (KB 0823) 60 East 42nd Street, Suite 2520 New York, NY 10165 Telephone: (212) 292-5390 Facsimile: (212) 292-5391 E-mail: E-mail: E-mail: Attorneys for Defendants Pro Hac Vice 2 3 4 5 6 7 8 9 10 DATED: August 23, 2017   11 12 ORDER 13   14 Based on the foregoing, IT IS SO ORDERED. 15 16 DATED this 30th day of August, 2017. 17 A 18 JAMES P. DONOHUE Chief United States Magistrate Judge 19 20 21 22 23 24 25 26 ORDER - 6

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