Bowen et al v. CSO Financial Inc et al

Filing 15

ORDER re parties 13 agreement regarding discovery of electronically stored information (ESI). Signed by U.S. District Judge John C Coughenour. (PM)

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THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 DUANE BOWEN, et al., 10 Plaintiffs, CASE NO. C17-0677-JCC ORDER v. 11 CSO FINANCIAL, INC., et al., 12 13 Defendants. 14 15 This matter comes before the Court on the parties’ agreement regarding 16 discovery of electronically stored information (ESI) (Dkt. No. 13). The parties hereby 17 stipulate to the following provisions: 18 19 A. General Principles 1. An attorney’s zealous representation of a client is not compromised by conducting 20 discovery in a cooperative manner. The failure of counsel or the parties to litigation to cooperate 21 in facilitating and reasonably limiting discovery requests and responses raises litigation costs and 22 contributes to the risk of sanctions. 23 2. The proportionality standard set forth in Federal Rule of Civil Procedure 24 26(b)(1) must be applied in each case when formulating a discovery plan. To further the 25 application of the proportionality standard in discovery, requests for production of ESI and 26 related responses should be reasonably targeted, clear, and as specific as possible. ORDER PAGE - 1 1 2 3 B. Within 30 days after the Rule 26(f) conference, or at a later time if agreed to by the parties, each party shall disclose: 1. 4 5 6 the instant litigation, and the type of the information under his/her control. 2. 11 12 3. 15 16 17 18 19 20 21 22 23 24 25 26 Third-Party Data Sources. A list of third-party data sources, if any, likely to contain discoverable ESI (e.g. third-party email and/or mobile device providers, “cloud” storage, etc.) and, for each such source, the extent to which a party is (or is not) able to preserve information stored in the third-party data source. 4. 13 14 Non-custodial Data Sources. A list of non-custodial data sources (e.g. shared drives, servers, etc.), if any, likely to contain discoverable ESI. 9 10 Custodians. The five custodians most likely to have discoverable ESI in their possession, custody, or control. The custodians shall be identified by name, title, connection to 7 8 ESI Disclosures Inaccessible Data. A list of data sources, if any, likely to contain discoverable ESI (by type, date, custodian, electronic system or other criteria sufficient to specifically identify the data source) that a party asserts is not reasonably accessible under Federal Rule of Civil Procedure 26(b)(2)(B). C. Preservation of ESI The parties acknowledge that they have a common law obligation to take reasonable and 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. 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 and archive data; provided, however, that the parties shall preserve all discoverable ESI in their possession, custody, or control. 2. All parties shall supplement their disclosures in accordance with Rule 26(e) with discoverable ESI responsive to a particular discovery request or mandatory disclosure ORDER PAGE - 2 1 where that data is created after a disclosure or response is made (unless excluded under (C)(3) 2 or (D)(1)-(2) below). 3 4 3. Absent a showing of good cause by the requesting party, the following categories of ESI need not be preserved: 5 a. b. Random access memory (RAM), temporary files, or other ephemeral data that are 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 last-opened 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. 6 Deleted, slack, fragmented, or other data only accessible by forensics. 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). 7 8 9 10 11 12 13 14 15 16 17 18 19 D. 20 21 1. 24 25 With respect to privileged or work-product information generated after the filing of the complaint, parties are not required to include any such information in privilege logs. 22 23 Privilege 2. Activities undertaken in compliance with the duty to preserve information are protected from disclosure and discovery under Federal Rule of Civil Procedure 26(b)(3)(A) and (B). 3. 26 ORDER PAGE - 3 Information produced in discovery that is protected as privileged or work 1 product shall be immediately returned to the producing party, and its production shall not 2 constitute a waiver of such protection, if: (i) such information appears on its face to have been 3 inadvertently produced or (ii) the producing party provides notice within 15 days of discovery 4 by the producing party of the inadvertent production. 5 E. 6 ESI Discovery Procedures 1. On-site inspection of electronic media. Such an inspection shall not be permitted 7 absent a demonstration by the requesting party of specific need and good cause or by 8 agreement of the parties. 9 2. Search methodology. The parties shall timely attempt to reach agreement on 10 appropriate search terms, or an appropriate computer- or technology-aided methodology, before 11 any such effort is undertaken. The parties shall continue to cooperate in revising the 12 appropriateness of the search terms or computer- or technology-aided methodology. For systems 13 containing information regarding proposed class members or communications with proposed 14 class members, upon reasonable request a party shall also disclose information relating to 15 network design, the types of databases, database dictionaries, the ESI document retention policy, 16 organizational chart for information systems personnel, or the backup and systems recovery 17 routines, including, but not limited to, tape rotation and destruction/overwrite policy. 18 19 In the absence of agreement on appropriate search terms, or an appropriate computer- or technology-aided methodology, the following procedures shall apply: 20 a. A producing party shall disclose the search terms or queries, if any, and 21 methodology that it proposes to use to locate ESI likely to contain discoverable information. The 22 parties shall meet and confer to attempt to reach an agreement on the producing party’s search 23 terms and/or other methodology. 24 b. If search terms or queries are used to locate ESI likely to contain 25 discoverable information, a requesting party is entitled to no more than 10 additional terms or 26 queries to be used in connection with further electronic searches absent a showing of good ORDER PAGE - 4 1 cause or agreement of the parties. The 10 additional terms or queries, if any, must be 2 provided by the requesting party within 14 days of receipt of the producing party’s production. 3 c. Focused terms and queries should be employed; broad terms or queries, 4 such as product and company names, generally should be avoided. Absent a showing of 5 good cause, each search term or query returning more than 250 megabytes of data are presumed 6 to be overbroad, excluding Microsoft PowerPoint files, image and audio files, and similarly 7 large file types. 8 9 10 d. The producing party shall search both non-custodial data sources and ESI maintained by the custodians identified above. 3. Format. The parties agree that ESI will be produced to the requesting party with 11 searchable text, in a format to be decided between the parties. Acceptable formats include, but 12 are not limited to, native files, multi-page TIFFs (with a companion OCR or extracted text 13 file), single-page TIFFs (only with load files for e-discovery software that includes metadata 14 fields identifying natural document breaks and also includes companion OCR and/or extracted 15 text files), and searchable PDFs. Unless otherwise agreed to by the parties, files that are not 16 easily converted to image format, such as spreadsheet, database, and drawing files, should be 17 produced in native format. 18 19 20 4. De-duplication. The parties may de-duplicate their ESI production across custodial and non-custodial data sources after disclosure to the requesting party. 5. Metadata fields. If the requesting party seeks metadata, the parties agree that 21 only the following metadata fields need be produced: document type; custodian and duplicate 22 custodians; author/from; recipient/to, cc and bcc; title/subject; file name and size; original file 23 path; date and time created, sent, modified and/or received; and hash value. 24 // 25 // 26 // ORDER PAGE - 5 1 2 3 STIPULATED TO, DATED, AND RESPECTFULLY SUBMITTED this 8th day of June, 2017. 4 TERRELL MARSHALL LAW GROUP PLLC DAVIS ROTHWELL EARLE & XOCHIHUA, P.C. 5 By: /s/ Beth E. Terrell, WSBA #26759 Beth E. Terrell, WSBA #26759 Email: Blythe H. Chandler, WSBA #43387 Email: Elizabeth A. Adams, WSBA #49175 Email: 936 North 34th Street, Suite 300 Seattle, Washington 98103-8869 Telephone: (206) 816-6603 Facsimile: (206) 319-5450 By: Sam Leonard, WSBA #46498 Email: LEONARD LAW 801 2nd Avenue, Suite 1410 Seattle, Washington 98104 Telephone: (206) 486-1176 Facsimile: (206) 458-6028 Attorneys for Defendant J. Michael Unfred, d/b/a J. Michael Unfred LLC 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Paul Arons, WSBA #47599 Email: LAW OFFICE OF PAUL ARONS 685 Spring Street Friday Harbor, Washington 98250 Telephone: (360) 378-6496 Facsimile: (360) 378-6498 Attorneys for Plaintiffs 22 23 24 25 26 ORDER PAGE - 6 /s/ Suzanne Pierce, WSBA #22733 Suzanne Pierce, WSBA #22733 Email: Patrick Rothwell, WSBA #23878 Email: Keith M. Liguori, WSBA #51501 Email: 520 Pike Street, Suite 2500 Seattle, Washington 98101 Telephone: (206) 622-2295 Facsimile: (206) 340-0724 HASSON LAW, LLC By: /s/ Jeffrey I. Hasson, WSBA #23741 Jeffrey I. Hasson, WSBA #23741 E-Mail: 12707 NE Halsey Street Portland, Oregon 97230 Telephone: (503) 255-5352 Facsimile: (503) 255-6124 Attorney for Defendants CSO Financial, Inc. and Mary Inscore ORDER 1 2 3 Based on the foregoing, IT IS SO ORDERED. DATED this 8th day of June 2017. A 4 5 6 John C. Coughenour UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ORDER PAGE - 7

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