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)

HONORABLE JAMES P. DONOHUE

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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9 BIOPURE HEALING PRODUCTS, LLC,
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Plaintiff,

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12 WELLNX LIFE SCIENCES, INC. and
PLATINUM US DISTRIBUTION, INC. d/b/a
13 WELLNX LIFE SCIENCES, USA,
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STIPULATED ORDER
REGARDING DISCOVERY OF
ELECTRONICALLY STORED
INFORMATION

Defendants.

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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.
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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:
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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.
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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.
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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.
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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.
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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:
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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.
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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).
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3.

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

4 of ESI need not be preserved:
a.

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

h.

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Server, system or network logs.

g.

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

f.

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

e.

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

d.

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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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16 D.

Privilege

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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.
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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).
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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.
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ORDER - 3

1 E.
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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.
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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:
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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.
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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.
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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.
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d.

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

26 maintained by the custodians identified above.

ORDER - 4

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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.
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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.
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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.
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SEED IP LAW GROUP LLP

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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: [phone]
Facsimile: [phone]
E-mail: [e-mail]
E-mail: [e-mail]
Attorneys for Plaintiff

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DATED: August 23, 2017

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ORDER - 5

BY: /s/ Stephen J. Kennedy
Stephen J. Kennedy, WSBA No. 16341
18214 13th Place West
Lynwood, WA 98037
Telephone: [phone]
E-mail: [e-mail]
Attorney for Defendants
DATED: August 23, 2017

EPSTEIN DRANGEL LLP

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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: [phone]
Facsimile: [phone]
E-mail: [e-mail]
E-mail: [e-mail]
E-mail: [e-mail]
Attorneys for Defendants
Pro Hac Vice

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DATED: August 23, 2017

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ORDER

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14 Based on the foregoing, IT IS SO ORDERED.
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DATED this 30th day of August, 2017.

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A

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JAMES P. DONOHUE
Chief United States Magistrate Judge

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ORDER - 6