Kim v. Sanofi Pasteur, Inc

Filing 17

STIPULATION AND ORDER Regarding Discovery of Electronically Stored Information re parties' 16 Stipulation, signed by Judge Thomas S. Zilly. (SWT)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON AT SEATTLE

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JOHN KIM,

CASE NO. 2:18-CV-00031 TSZ

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Plaintiff,

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v.

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SANOFI PASTEUR INC.,

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Defendant.

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STIPULATION
REGARDING
DISCOVERY OF
ELECTRONICALLY
STORED
INFORMATION AND
ORDER

The parties hereby stipulate to the following provisions regarding the discovery

15 of electronically stored information (“ESI”) in this matter:
16 A.
17 1.

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

18 discovery in a cooperative manner. The failure of counsel or the parties to litigation to cooperate
19 in facilitating and reasonably limiting discovery requests and responses raises litigation costs and
20 contributes to the risk of sanctions.
21 2.

The proportionality standard set forth in Fed. R. Civ. P. 26(b)(1) must be applied

22 in each case when formulating a discovery plan. To further the application of the proportionality
23 standard in discovery, requests for production of ESI and related responses should be reasonably
24 targeted, clear, and as specific as possible.
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STIPULATED ESI ORDER - 1
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1 B.

ESI Disclosures

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By June 5, 2018, each party shall disclose:

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Custodians. The five custodians most likely to have discoverable ESI in their possession,

4 custody or control. The custodians shall be identified by name, title, connection to the instant
5 litigation, and the type of the information under his/her control.
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Databases. A list of databases used to submit, track, review, and/or approve employee

7 travel expenses.
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Non-custodial Data Sources. A list of non-custodial data sources (e.g. shared drives,

9 servers, etc.), if any, likely to contain discoverable ESI.
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Third-Party Data Sources. A list of third-party data sources, if any, likely to

11 contain discoverable ESI (e.g. third-party email and/or mobile device providers, “cloud”
12 storage, etc.) and, for each such source, the extent to which a party is (or is not) able to
13 preserve information stored in the third-party data source.
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Inaccessible Data. A list of data sources, if any, likely to contain discoverable ESI

15 (by type, date, custodian, electronic system or other criteria sufficient to specifically
16 identify the data source) that a party asserts is not reasonably accessible under Fed. R. Civ.
17 P. 26(b)(2)(B).
18 C.
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Preservation of ESI
The parties acknowledge that they have a common law obligation to take reasonable

20 and proportional steps to preserve discoverable information in the party’s possession, custody
21 or control. With respect to preservation of ESI, the parties agree as follows:
22 1.

Absent a showing of good cause by the requesting party, the parties shall not be

23 required to modify the procedures used by them in the ordinary course of business to back-up
24 and archive data; provided, however, that the parties shall preserve all discoverable ESI in
25 their possession, custody or control.
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1 2.

All parties shall supplement their disclosures in accordance with Rule 26(e) with

2 discoverable ESI responsive to a particular discovery request or mandatory disclosure where
3 that data is created after a disclosure or response is made (unless excluded under (C)(3) or
4 (D)(1)-(2) below).
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Absent a showing of good cause by the requesting party, the following categories of

6 ESI need not be preserved:
a.

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 lastopened 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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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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18 D.
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Privilege
With respect to privileged communications between the parties and their litigation

20 counsel (between Plaintiff and MacDonald Hoague & Bayless or his previous attorneys at
21 McNaul Ebel; and between Defendants and Jackson Lewis or any previous law firms), the
22 parties are not required to include any such information in privilege logs.
23 2.

Activities undertaken in compliance with the duty to preserve information are protected

24 from disclosure and discovery under Fed. R. Civ. P. 26(b)(3)(A) and (B).
25 3.
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Information produced in discovery that is protected as privileged or work product shall

be immediately returned to the producing party, and its production shall not constitute a waiver

STIPULATED ESI ORDER - 3
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1 of such protection, if: (i) such information appears on its face to have been inadvertently
2 produced or (ii) the producing party provides notice within 15 days of discovery by
3 the producing party of the inadvertent production.
4 E.
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ESI Discovery Procedures
1.

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

6 absent a demonstration by the requesting party of specific need and good cause or by
7 agreement of the parties.
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2.

Search methodology. The parties shall timely attempt to reach agreement on

9 appropriate search terms, or an appropriate computer- or technology-aided methodology, before
10 any such effort is undertaken. The parties shall continue to cooperate in revising the
11 appropriateness of the search terms or computer- or technology-aided methodology.
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In the absence of agreement on appropriate search terms, or an appropriate computer- or

13 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

15 methodology that it proposes to use to locate ESI likely to contain discoverable information. The
16 parties shall meet and confer to attempt to reach an agreement on the producing party’s search
17 terms and/or other methodology.
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b.

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

19 contain discoverable information, a requesting party is entitled to no more than 5 additional
20 terms or queries to be used in connection with further electronic searches absent a showing of
21 good cause or agreement of the parties. The 5 additional terms or queries, if any, must be
22 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,

24 such as product and company names, and Plaintiff’s name, generally should be avoided.
25 Absent a showing of good cause, each search term or query returning more than 250
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1 megabytes of data are presumed to be overbroad, excluding Microsoft PowerPoint files, image
2 and audio files, and similarly large file types.
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d.

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

4 maintained by the custodians identified above.
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3.

Format. The parties agree that ESI will be produced to the requesting party with

6 searchable text, in either native or searchable PDF format. Unless otherwise agreed to by the
7 parties, files that are not easily converted to image format, such as spreadsheet, database and
8 drawing files, should be produced 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

12 only 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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DATED this 16th day of May, 2018.

DATED this 16th day of May, 2018.

MacDONALD HOAGUE & BAYLESS

JACKSON LEWIS

18 s/Tiffany Cartwright
Leslie J. Hagin, WSBA #29186
19 [e-mail]
Tiffany M. Cartwright, WSBA #43564
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705 Second Avenue, Suite 1500
21 Seattle, WA 98104
22 Attorneys for Plaintiff

s/Michael Griffin (per 5/15/18 email
authorization)
Michael Griffin, WSBA # 29103
[e-mail]
Jonathan Minear, WSBA # 41377
[e-mail]
520 Pike Street, Suite 2300
Seattle, WA 98101
Attorneys for Defendant

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ORDER

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Based on the foregoing, IT IS SO ORDERED.

3 DATED: May 25, 2018.
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Thomas S. Zilly
United States District Judge

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