United States Fire Insurance Company et al v. Icicle Seafoods Inc et al

Filing 44

AGREEMENT REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION AND ORDER re Parties' 43 Stipulation. Signed by Judge Ricardo S. Martinez. (PM)

THE HONORABLE RICARDO S. MARTINEZ

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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UNITED STATES FIRE INSURANCE
COMPANY, et al.,

IN ADMIRALTY
NO. 2:20-cv-00401-RSM

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Plaintiffs/Counterclaim
Defendants,

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v.
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AGREEMENT REGARDING
DISCOVERY OF ELECTRONICALLY
STORED INFORMATION AND
ORDER

ICICLE SEAFOODS, INC., et al.,
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Defendants/Counterclaim
Plaintiffs.

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NOTE ON MOTION CALENDAR:
NOVEMBER 5, 2020

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The parties hereby stipulate to the following provisions regarding the discovery of

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electronically stored information (“ESI”) in this matter:

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A.

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General Principles
1.

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

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

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to cooperate in facilitating and reasonably limiting discovery requests and responses raises

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litigation costs and contributes to the risk of sanctions.

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2.

As provided in LCR 26(f), the proportionality standard set forth in Fed. R. Civ.

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P. 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.

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AGREEMENT REGARDING DISCOVERY OF
ELECTRONICALLY STORED INFORMATION
AND ORDER - 1
NO. 2:20-cv-00401-RSM

ATTORNEYS AT LAW

BAUER MOYNIHAN & JOHNSON LLP
2101 FOURTH AVENUE, STE. 2400
SEATTLE, WASHINGTON 98121
TELEPHONE: [phone]

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B.

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Within 30 days of entry of this Order, or at a later time if agreed to by the parties, each

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ESI Disclosures

party shall disclose:
1.

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

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possession, custody, or control. The custodians shall be identified by name, title, connection

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to the instant litigation, and the type of the information under the custodian’s control.
2.

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

drives, servers), if any, likely to contain discoverable ESI.
3.

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Third-Party Data Sources. A list of third-party data sources, if any, likely to

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contain discoverable ESI (e.g., third-party email providers, mobile device providers, cloud

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storage) and, for each such source, the extent to which a party is (or is not) able to preserve

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information stored in the third-party data source.
4.

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Inaccessible Data. A list of data sources, if any, likely to contain discoverable

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ESI (by type, date, custodian, electronic system or other criteria sufficient to specifically

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identify the data source) that a party asserts is not reasonably accessible under Fed. R. Civ. P.

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26(b)(2)(B).

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C.

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ESI Discovery Procedures
1.

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

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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 confer to attempt to reach

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agreement on appropriate search terms and queries, file type and date restrictions, data sources

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(including custodians), and other appropriate computer- or technology-aided methodologies,

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before any such effort is undertaken. The parties shall continue to cooperate in revising the

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appropriateness of the search methodology.

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AGREEMENT REGARDING DISCOVERY OF
ELECTRONICALLY STORED INFORMATION
AND ORDER - 2
NO. 2:20-cv-00401-RSM

ATTORNEYS AT LAW

BAUER MOYNIHAN & JOHNSON LLP
2101 FOURTH AVENUE, STE. 2400
SEATTLE, WASHINGTON 98121
TELEPHONE: [phone]

a.

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Prior to running searches:
i.

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The producing party shall disclose the data sources (including

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custodians), search terms and queries, any file type and date restrictions, and any other

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methodology that it proposes to use to locate ESI likely to contain responsive and discoverable

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information. The producing party may provide unique hit counts for each search query.
ii.

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The requesting party is entitled to, within 14 days of the

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producing party’s disclosure, add no more than 10 search terms or queries to those disclosed

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by the producing party absent a showing of good cause or agreement of the parties.
iii.

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The following provisions apply to search terms / queries of the

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requesting party. Focused terms and queries should be employed; broad terms or queries, such

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as product and company names, generally should be avoided. A conjunctive combination of

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multiple words or phrases (e.g., “computer” and “system”) narrows the search and shall count

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as a single search term. A disjunctive combination of multiple words or phrases (e.g.,

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“computer” or “system”) broadens the search, and thus each word or phrase shall count as a

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separate search term unless they are variants of the same word. The producing party may

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identify each search term or query returning overbroad results demonstrating the overbroad

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results and a counter proposal correcting the overbroad search or query. A search that returns

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more than 250 megabytes of data, excluding Microsoft PowerPoint files, audio files, and

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similarly large file types, is presumed to be overbroad.
b.

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After production: Within 21 days of the producing party notifying the

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receiving party that it has substantially completed the production of documents responsive to

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a request, the responding party may request no more than 10 additional search terms or queries.

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The immediately preceding section (Section C(2)(a)(iii)) applies.

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3.

Format.
a.

ESI will be produced to the requesting party with searchable text, in a

format to be decided between the parties. Acceptable formats include, but are not limited to,
AGREEMENT REGARDING DISCOVERY OF
ELECTRONICALLY STORED INFORMATION
AND ORDER - 3
NO. 2:20-cv-00401-RSM

ATTORNEYS AT LAW

BAUER MOYNIHAN & JOHNSON LLP
2101 FOURTH AVENUE, STE. 2400
SEATTLE, WASHINGTON 98121
TELEPHONE: [phone]

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native files, multi-page TIFFs (with a companion OCR or extracted text file), single-page

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TIFFs (only with load files for e-discovery software that includes metadata fields identifying

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natural document breaks and also includes companion OCR and/or extracted text files), and

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searchable PDF.

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b.

Unless otherwise agreed to by the parties, files that are not easily

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converted to image format, such as spreadsheet, database, and drawing files, will be produced

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in native format.

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c.

Each document image file shall be named with a unique number (Bates

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Number). File names should not be more than twenty characters long or contain spaces. When

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a text-searchable image file is produced, the producing party must preserve the integrity of the

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underlying ESI, i.e., the original formatting, the metadata (as noted below) and, where

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applicable, the revision history.

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d.

If a document is more than one page, the unitization of the document

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and any attachments and/or affixed notes shall be maintained as they existed in the original

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document.

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4.

De-duplication. The parties may de-duplicate their ESI production across

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custodial and non-custodial data sources after disclosure to the requesting party, and the

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duplicate custodian information removed during the de-duplication process tracked in a

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duplicate/other custodian field in the database load file.

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5.

Email Threading. The parties may use analytics technology to identify email

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threads and need only produce the unique most inclusive copy and related family members

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and may exclude lesser inclusive copies. Upon reasonable request, the producing party will

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produce a less inclusive copy.

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6.

Metadata fields. If the requesting party seeks metadata, the parties agree that

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only the following metadata fields need be produced, and only to the extent it is reasonably

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accessible and non-privileged: document type; custodian and duplicate custodians (or storage
AGREEMENT REGARDING DISCOVERY OF
ELECTRONICALLY STORED INFORMATION
AND ORDER - 4
NO. 2:20-cv-00401-RSM

ATTORNEYS AT LAW

BAUER MOYNIHAN & JOHNSON LLP
2101 FOURTH AVENUE, STE. 2400
SEATTLE, WASHINGTON 98121
TELEPHONE: [phone]

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location if no custodian); author/from; recipient/to, cc and bcc; title/subject; email subject; file

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name; file size; file extension; original file path; date and time created, sent, modified and/or

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received; and hash value. The list of metadata type is intended to be flexible and may be

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changed by agreement of the parties, particularly in light of advances and changes in

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technology, vendor, and business practices.
7.

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Hard-Copy Documents. If the parties elect to produce hard-copy documents in

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an electronic format, the production of hard-copy documents will include a cross-reference file

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that indicates document breaks and sets forth the custodian or custodian/location associated

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with each produced document. Hard-copy documents will be scanned using Optical Character

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Recognition technology and searchable PDF or ASCII text files will be produced (or Unicode

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text format if the text is in a foreign language), unless the producing party can show that the

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cost would outweigh the usefulness of scanning (for example, when the condition of the paper

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is not conducive to scanning and will not result in accurate or reasonably useable/searchable

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ESI). Each file will be named with a unique Bates Number (e.g., the unique Bates Number of

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the first page of the corresponding production version of the document followed by its file

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extension).

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D.

Preservation of ESI

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The parties acknowledge that they have a common law obligation, as expressed in Fed.

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R. Civ. P. 37(e), to take reasonable and proportional steps to preserve discoverable information

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in the party’s possession, custody, or control. With respect to preservation of ESI, the parties

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agree as follows:

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1.

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

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be required to modify the procedures used by them in the ordinary course of business to back-

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up and archive data; provided, however, that the parties shall preserve all discoverable ESI in

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their possession, custody, or control.

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AGREEMENT REGARDING DISCOVERY OF
ELECTRONICALLY STORED INFORMATION
AND ORDER - 5
NO. 2:20-cv-00401-RSM

ATTORNEYS AT LAW

BAUER MOYNIHAN & JOHNSON LLP
2101 FOURTH AVENUE, STE. 2400
SEATTLE, WASHINGTON 98121
TELEPHONE: [phone]

2.

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The parties will supplement their disclosures in accordance with Fed. R. Civ.

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P. 26(e) with discoverable ESI responsive to a particular discovery request or mandatory

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disclosure where that data is created after a disclosure or response is made (unless excluded

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under Sections (D)(3) or (E)(1)-(2)).
3.

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

categories of ESI need not be preserved:

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a.

Deleted, slack, fragmented, or other data only accessible by forensics.

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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 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.

Electronic data (e.g., email, calendars, contact data, and notes) sent to
or from mobile devices (e.g., iPhone, iPad, Android devices), provided
that a copy of all such electronic data is automatically saved in real
time elsewhere (such as on a server, laptop, desktop computer, or
“cloud” storage).

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E.

Privilege
1.

A producing party shall create a privilege log of all documents fully withheld

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from production on the basis of a privilege or protection, unless otherwise agreed or excepted

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by this Agreement and Order. Privilege logs shall include a unique identification number for

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each document and the basis for the claim (attorney-client privileged or work-product

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protection). For ESI, the privilege log may be generated using available metadata, including
AGREEMENT REGARDING DISCOVERY OF
ELECTRONICALLY STORED INFORMATION
AND ORDER - 6
NO. 2:20-cv-00401-RSM

ATTORNEYS AT LAW

BAUER MOYNIHAN & JOHNSON LLP
2101 FOURTH AVENUE, STE. 2400
SEATTLE, WASHINGTON 98121
TELEPHONE: [phone]

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author/recipient or to/from/cc/bcc names; the subject matter or title; and date created. Should

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the available metadata provide insufficient information for the purpose of evaluating the

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privilege claim asserted, the producing party shall include such additional information as

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required by the Federal Rules of Civil Procedure. Privilege logs will be produced to all other

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parties no later than 30 days after delivering a production unless an earlier deadline is agreed

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to by the parties.

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2.

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Redactions need not be logged so long as the basis for the redaction is clear on

the redacted document.
3.

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With respect to privileged or work-product information generated after the

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filing of the complaint, parties are not required to include any such information in privilege

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logs.

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4.

Activities undertaken in compliance with the duty to preserve information are

protected from disclosure and discovery under Fed. R. Civ. P. 26(b)(3)(A) and (B).
5.

Pursuant to Fed. R. Evid. 502(d), the production of any documents in this

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proceeding shall not, for the purposes of this proceeding or any other federal or state

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proceeding, constitute a waiver by the producing party of any privilege applicable to those

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documents, including the attorney-client privilege, attorney work-product protection, or any

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other privilege or protection recognized by law. Information produced in discovery that is

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protected as privileged or work product shall be immediately returned to the producing party,

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and its production shall not constitute a waiver of such protection.

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Dated this 5th day of November, 2020.

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BAUER MOYNIHAN & JOHNSON LLP

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/s Matthew C. Crane
Matthew C. Crane, WSBA No. 18003

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/s Robert D. Sykes
Robert D. Sykes, WSBA No. 49635

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AGREEMENT REGARDING DISCOVERY OF
ELECTRONICALLY STORED INFORMATION
AND ORDER - 7
NO. 2:20-cv-00401-RSM

ATTORNEYS AT LAW

BAUER MOYNIHAN & JOHNSON LLP
2101 FOURTH AVENUE, STE. 2400
SEATTLE, WASHINGTON 98121
TELEPHONE: [phone]

Attorneys for plaintiffs/counterclaim
defendants United States Fire Insurance
Company, National Union Fire Insurance
Company of Pittsburgh, PA, Great American
Insurance Company of New York, Argonaut
Insurance Company, Endurance American
Insurance Company, Houston Casualty
Company, and Certain Underwriters at
Lloyd’s, London

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Dated this 5th day of November, 2020.

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MULLIN, ALLEN & STEINER, PLLC

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s/ Timothy E. Allen (per email authorization)
Daniel F. Mullin, WSBA No. 12768
Timothy E. Allen, WSBA No. 35337
Attorneys for defendants/counterclaim
plaintiffs Icicle Seafoods, Inc. and
ISVesselCo, Inc.

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ORDER

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Based on the foregoing, IT IS SO ORDERED.
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DATED: November 6, 2020.

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A

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RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

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Presented by:
BAUER MOYNIHAN & JOHNSON LLP
/s Matthew C. Crane
Matthew C. Crane, WSBA No. 18003
AGREEMENT REGARDING DISCOVERY OF
ELECTRONICALLY STORED INFORMATION
AND ORDER - 8
NO. 2:20-cv-00401-RSM

ATTORNEYS AT LAW

BAUER MOYNIHAN & JOHNSON LLP
2101 FOURTH AVENUE, STE. 2400
SEATTLE, WASHINGTON 98121
TELEPHONE: [phone]

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/s Robert D. Sykes
Robert D. Sykes, WSBA No. 49635
Attorneys for plaintiffs/counterclaim defendants

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AGREEMENT REGARDING DISCOVERY OF
ELECTRONICALLY STORED INFORMATION
AND ORDER - 9
NO. 2:20-cv-00401-RSM

ATTORNEYS AT LAW

BAUER MOYNIHAN & JOHNSON LLP
2101 FOURTH AVENUE, STE. 2400
SEATTLE, WASHINGTON 98121
TELEPHONE: [phone]