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)

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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DUANE BOWEN, et al.,

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Plaintiffs,

CASE NO. C17-0677-JCC
ORDER

v.

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CSO FINANCIAL, INC., et al.,

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Defendants.

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This matter comes before the Court on the parties’ agreement regarding

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discovery of electronically stored information (ESI) (Dkt. No. 13). The parties hereby

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stipulate to the following provisions:

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A.

General Principles
1.

An attorney’s zealous representation of a client is not compromised by conducting

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discovery in a cooperative manner. The failure of counsel or the parties to litigation to cooperate

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in facilitating and reasonably limiting discovery requests and responses raises litigation costs and

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contributes to the risk of sanctions.

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2.

The proportionality standard set forth in Federal Rule of Civil Procedure

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26(b)(1) must be applied in each case when formulating a discovery plan. To further the

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application of the proportionality standard in discovery, requests for production of ESI and

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

ORDER
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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.

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the instant litigation, and the type of the information under his/her control.
2.

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3.

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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.

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Non-custodial Data Sources. A list of non-custodial data sources (e.g.

shared drives, servers, etc.), if any, likely to contain discoverable ESI.

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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

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

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

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3.

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

categories of ESI need not be preserved:

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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.

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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).

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D.

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1.

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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.

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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.

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ORDER
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Information produced in discovery that is protected as privileged or work

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product shall be immediately returned to the producing party, and its production shall not

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constitute a waiver of such protection, 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.

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ESI Discovery Procedures
1.

On-site inspection of electronic media. Such an inspection shall not be permitted

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absent a demonstration by the requesting party of specific need and good cause or by

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agreement of the parties.

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2.

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. For systems

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containing information regarding proposed class members or communications with proposed

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class members, upon reasonable request a party shall also disclose information relating to

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network design, the types of databases, database dictionaries, 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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In the absence of agreement on appropriate search terms, or an appropriate computer- or
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

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

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

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terms and/or other methodology.

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b.

If search terms or queries are used to locate ESI likely to contain

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discoverable information, a requesting party is entitled to no more than 10 additional terms or

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queries to be used in connection with further electronic searches absent a showing of good

ORDER
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cause or agreement of the parties. The 10 additional terms or queries, if any, must be

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provided by the 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,

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

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good cause, each search term or query returning more than 250 megabytes of data are presumed

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to be overbroad, excluding Microsoft PowerPoint files, image and audio files, and similarly

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large file types.

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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

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searchable text, in a format to be decided between the parties. Acceptable formats include, but

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are not limited to, native files, multi-page TIFFs (with a companion OCR or extracted text

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file), single-page TIFFs (only with load files for e-discovery software that includes metadata

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fields identifying natural document breaks and also includes companion OCR and/or extracted

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text files), and searchable PDFs. Unless otherwise agreed to by the parties, files that are not

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easily converted to image format, such as spreadsheet, database, and drawing files, should be

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produced in native format.

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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

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only the following metadata fields need be produced: document type; custodian and duplicate

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custodians; author/from; recipient/to, cc and bcc; title/subject; file name and size; original file

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path; date and time created, sent, modified and/or received; and hash value.

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//

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//

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//

ORDER
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STIPULATED TO, DATED, AND RESPECTFULLY SUBMITTED this 8th day of
June, 2017.

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TERRELL MARSHALL LAW
GROUP PLLC

DAVIS ROTHWELL EARLE
& XOCHIHUA, P.C.

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By:

/s/ Beth E. Terrell, WSBA #26759
Beth E. Terrell, WSBA #26759
Email: [e-mail]
Blythe H. Chandler, WSBA #43387
Email: [e-mail]
Elizabeth A. Adams, WSBA #49175
Email: [e-mail]
936 North 34th Street, Suite 300
Seattle, Washington 98103-8869
Telephone: [phone]
Facsimile: [phone]

By:

Sam Leonard, WSBA #46498
Email: [e-mail]
LEONARD LAW
801 2nd Avenue, Suite 1410
Seattle, Washington 98104
Telephone: [phone]
Facsimile: [phone]

Attorneys for Defendant J. Michael Unfred,
d/b/a J. Michael Unfred LLC

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Paul Arons, WSBA #47599
Email: [e-mail]
LAW OFFICE OF PAUL ARONS
685 Spring Street
Friday Harbor, Washington 98250
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiffs

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ORDER
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/s/ Suzanne Pierce, WSBA #22733
Suzanne Pierce, WSBA #22733
Email: [e-mail]
Patrick Rothwell, WSBA #23878
Email: [e-mail]
Keith M. Liguori, WSBA #51501
Email: [e-mail]
520 Pike Street, Suite 2500
Seattle, Washington 98101
Telephone: [phone]
Facsimile: [phone]

HASSON LAW, LLC
By:

/s/ Jeffrey I. Hasson, WSBA #23741
Jeffrey I. Hasson, WSBA #23741
E-Mail: [e-mail]
12707 NE Halsey Street
Portland, Oregon 97230
Telephone: [phone]
Facsimile: [phone]

Attorney for Defendants CSO Financial, Inc.
and Mary Inscore

ORDER

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Based on the foregoing, IT IS SO ORDERED.
DATED this 8th day of June 2017.

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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ORDER
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