Market Place North Condominium Association v. Affiliated FM Insurance Company
Filing
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AGREEMENT REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION AND ORDER signed by Judge Ricardo S Martinez. (PM)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON AT SEATTLE
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9 MARKET PLACE NORTH CONDOMINIUM
No. C17-625 RSM
ASSOCIATION, a Washington non-profit
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AGREEMENT REGARDING DISCOVERY
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Plaintiff, OF ELECTRONICALLY STORED
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INFORMATION AND ORDER
vs.
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14 AFFILIATED FM INSURANCE COMPANY,
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Defendant.
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AGREEMENT
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The parties hereby stipulate to entry of the below Order regarding the following provisions
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19 regarding discovery of electronically stored information (“ESI”) in this matter, based on the Model
20 Agreement Regarding Discovery of Electronically Stored Information for the U.S.D.C., W.D. of
21 Washington, as amended by agreement of the parties:
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General Principles
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1.
An attorney’s zealous representation of a client is not compromised by conducting
24 discovery in a cooperative manner. The failure of counsel or the parties to litigation to cooperate
25 in facilitating and reasonably limiting discovery requests and responses raises litigation costs and
26 contributes to the risk of sanctions.
AGREEMENT REGARDING DISCOVERY OF
ELECTRONICALLY STORED INFORMATION
AND ORDER
(Cause No. 2:17-cv-00625-RSM) – 1
js/MES6500.019/2802111x
901 FIFTH AVENUE, SUITE 1700
SEATTLE, WASHINGTON 98164
TELEPHONE: (206) 623-4100
FAX: (206) 623-9273
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2.
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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3.
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Agreement for presentation to the Court. This is that ESI Agreement.
B.
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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.
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archive data; provided, however, that the parties shall preserve all discoverable ESI in their
possession, custody, or control.
2.
data is created after a disclosure or response is made (unless excluded under (C)(3) or D(1)-(2),
below).
3.
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.
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Random access memory (RAM), temporary files, or other ephemeral data
that are difficult to preserve without disabling the operating system.
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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
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Absent a showing of good cause by the requesting party, the parties shall not be
required to modify procedures used by them in the ordinary course of business to back up and
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Preservation of ESI
The parties acknowledge that they have a common law obligation to take reasonable and
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The parties filed their Combined Joint Status Report and Discovery Plan on
January 22, 2018, and therein represented that they would work cooperatively to enter into an ESI
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The proportionality standard set forth in Fed. R. Civ. P. 26(b)(1) must be applied
c.
Online access data, such as temporary internet files, history, cache, cookies,
and the like.
AGREEMENT REGARDING DISCOVERY OF
ELECTRONICALLY STORED INFORMATION
AND ORDER
(Cause No. 2:17-cv-00625-RSM) – 2
js/MES6500.019/2802111x
901 FIFTH AVENUE, SUITE 1700
SEATTLE, WASHINGTON 98164
TELEPHONE: (206) 623-4100
FAX: (206) 623-9273
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d.
last-opened dates (see also Section (E)(5)).
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e.
f.
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Data remaining from systems no longer in use that is unintelligible on the
h.
Electronic data (e.g., email, calendars, contact data, and notes) sent to or
systems in use.
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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.
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Data in metadata fields that are frequently updated automatically, such as
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).
C.
Privilege
1.
With respect to privileged information, attorney work-product information, and
any other confidential, protected, or proprietary information generated after the filing of the
Plaintiff’s First Amended Complaint, the parties are not required to include any such information
in Privilege Logs. All such information created before the filing of the First Amended Complaint,
if withheld, will be accompanied by a Privilege Log; however, this agreement is without waiver
of or prejudice to either party’s arguments as to when any attorney-client or work-product
privileges attached or may have ended.
2.
Activities undertaken in compliance with the duty to preserve information are
protected from disclosure and discovery under Fed. R. Civ. P. 28(b)(3)(A) and (B).
3.
Information produced in discovery that is protected as privileged, attorney work
product, confidential, or proprietary shall be immediately returned to the producing party, shall not
be used or admissible in this litigation, and its production shall not constitute a waiver of such
protection(s), if: (i) such information appears on its face to have been inadvertently produced or
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AGREEMENT REGARDING DISCOVERY OF
ELECTRONICALLY STORED INFORMATION
AND ORDER
(Cause No. 2:17-cv-00625-RSM) – 3
js/MES6500.019/2802111x
901 FIFTH AVENUE, SUITE 1700
SEATTLE, WASHINGTON 98164
TELEPHONE: (206) 623-4100
FAX: (206) 623-9273
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(ii) the producing party provides notice within 15 days of discovery by the producing party of the
inadvertent production.
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4.
If a document is redacted based on one or more claims of privilege, the producing
party shall supply a list of the documents for any such claim or claims of privilege, indicating the
grounds for the redaction and the nature of the redacted information (e.g., attorney-client privilege,
work product, etc.). During the pendency of the litigation, an electronic copy of the original
unredacted data shall be securely preserved.
D.
ESI Discovery Procedures
1.
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.
2.
Search methodology. The parties will, within fifteen (15) days after production of
any document in compliance with FRCP 26 (initial disclosures) or in response to any Request for
Production, disclose the search terms/queries used, and identify the sources (such as, but not
limited to, the individual email accounts, databases, hard drives, and/or hard copy files) that were
subject to that search. Focused terms and queries should be employed; broad terms or queries
generally should be avoided.
3.
Disputes. If a dispute arises between the parties regarding the appropriateness of
the search terms, methodology, and/or completeness of a production, the parties shall meet and
confer to attempt to reach an agreement on the producing party’s search terms and/or other
methodology. If search terms or queries are used to locate ESI likely to contain discoverable
information, a party must identify any specific terms or queries it believes should have been
included in the search within fifteen (15) days from the date the search terms are disclosed to that
party pursuant to paragraph D(2) (“Search methodology”) of this agreement. The parties shall then
meet and confer to attempt to find a resolution without resorting to court intervention.
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AGREEMENT REGARDING DISCOVERY OF
ELECTRONICALLY STORED INFORMATION
AND ORDER
(Cause No. 2:17-cv-00625-RSM) – 4
js/MES6500.019/2802111x
901 FIFTH AVENUE, SUITE 1700
SEATTLE, WASHINGTON 98164
TELEPHONE: (206) 623-4100
FAX: (206) 623-9273
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4.
Format. The parties agree that ESI will be produced to the requesting party in an
acceptable format. Acceptable formats include native files, multi-page TIFFs (with a companion
OC or extracted text file), single-page TIFFs (only with load files for e-discovery software that
includes metadata fields identifying natural document breaks and also includes companion OCR
and/or extracted text files), or 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.
5.
Metadata fields. If the requesting party seeks metadata, the parties agree that only
the following metadata fields need to 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 10th day of April, 2018.
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ASHBAUGH BEAL
WILSON SMITH COCHRAN DICKERSON
By s/Jesse D. Miller
Jesse D. Miller, WSBA #35837
jmiller@ashbaughbeal.com
Zachary O. McIsaac, WSBA #35833
zmcisaac@ashbaughbeal.com
Attorneys for Plaintiff
By s/Maria E. Sotirhos____________
Scott M. Stickney, WSBA #14540
stickney@wscd.com
Maria E. Sotirhos, WSBA #21726
sotirhos@wscd.com
Attorneys for Defendant
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ORDER
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SO ORDERED this 12th day of April 2018.
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RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE
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AGREEMENT REGARDING DISCOVERY OF
ELECTRONICALLY STORED INFORMATION
AND ORDER
(Cause No. 2:17-cv-00625-RSM) – 5
js/MES6500.019/2802111x
901 FIFTH AVENUE, SUITE 1700
SEATTLE, WASHINGTON 98164
TELEPHONE: (206) 623-4100
FAX: (206) 623-9273
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