Horn v. Amazon.com Inc

Filing 68

ORDER regarding the discovery of electronically stored information. Signed by Judge Robert S. Lasnik. (MJV)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE DIVISION 7 8 STEVEN HORN, individually and on behalf of all others similarly situated, 9 10 Plaintiff, 11 v. 12 AMAZON.COM, INC., 13 Defendant. CASE NO. 2:23-cv-01727-RSL ORDER REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION 14 The Court hereby establishes the following provisions regarding the discovery of 15 16 17 18 19 20 21 22 23 24 25 26 electronically stored information (“ESI”) in this matter: A. General Principles 1. An attorney’s zealous representation of a client is not compromised by conducting discovery in a cooperative manner. The failure of counsel or the parties to litigation to cooperate in facilitating and reasonably limiting discovery requests and responses raises litigation costs and contributes to the risk of sanctions. 2. As provided in LCR 26(f), the proportionality standard set forth in Fed. R. Civ. P. 26(b)(1) must be applied 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 ORDER REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION PAGE - 1 1 responses should be reasonably targeted, clear, and as specific as possible. This order is intended 2 to assist the parties in identifying relevant, responsive information that has been stored 3 electronically and is proportional to the needs of the case. The order does not supplant the parties’ 4 obligations to comply with Fed. R. Civ. P. 34. 5 B. ESI Disclosures 6 Within 30 days of entry of this Order, or at a later time if agreed to by the parties, each 7 party shall disclose: 8 1. Custodians. The custodians most likely to have discoverable ESI in their 9 possession, custody, or control. The custodians shall be identified by name, title, connection to 10 the instant litigation, and the type of the information under the custodian’s control. 11 2. Non-custodial Data Sources. A list of non-custodial data sources (e.g., shared 12 drives, servers), if any, likely to contain discoverable ESI. 13 3. Third-Party Data Sources. A list of third-party data sources, if any, likely to 14 contain discoverable ESI (e.g., third-party email providers, mobile device providers, cloud 15 storage) and, for each such source, the extent to which a party is (or is not) able to preserve 16 information stored in the third-party data source. 17 4. Inaccessible Data. A list of data sources, if any, likely to contain discoverable ESI 18 (by type, date, custodian, electronic system or other criteria sufficient to specifically identify the 19 data source) that a party asserts is not reasonably accessible under Fed. R. Civ. P. 26(b)(2)(B). 20 5. Foreign data privacy laws. Nothing in this Order is intended to prevent either party 21 from complying with the requirements of a foreign country’s data privacy laws, e.g., the European 22 Union’s General Data Protection Regulation (GDPR) (EU) 2016/679. The parties shall meet and 23 24 25 26 ORDER REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION PAGE - 2 1 confer before including custodians or data sources subject to such laws in any ESI or other 2 discovery request. 3 C. ESI Discovery Procedures 4 1. On-site inspection of electronic media. Such an inspection shall not be required 5 absent a demonstration by the requesting party of specific need and good cause or by agreement 6 of the parties. 7 2. Search methodology. The parties shall timely confer to attempt to reach agreement 8 on appropriate search terms and queries, file type and date restrictions, data sources (including 9 custodians), and other appropriate computer- or technology-aided methodologies, before any such 10 effort is undertaken. The parties shall continue to cooperate in revising the appropriateness of the 11 search methodology. 12 13 a. Prior to running searches: i. The producing party shall disclose the data sources (including 14 custodians), search terms and queries, any file type and date restrictions, and any other 15 methodology that it proposes to use to locate ESI likely to contain responsive and discoverable 16 information. The producing party may provide unique hit counts for each search query. 17 ii. After disclosure, the parties will engage in a meet and confer 18 process regarding additional terms sought by the non-producing party. 19 iii. The following provisions apply to search terms / queries of the 20 requesting party. Focused terms and queries should be employed; broad terms or queries, such 21 as product and company names, generally should be avoided. A conjunctive combination of 22 multiple words or phrases (e.g., “computer” and “system”) narrows the search and shall count as 23 a single search term. A disjunctive combination of multiple words or phrases (e.g., “computer” 24 25 26 ORDER REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION PAGE - 3 1 or “system”) broadens the search, and thus each word or phrase shall count as a separate search 2 term unless they are variants of the same word. The producing party may identify each search 3 term or query returning overbroad results demonstrating the overbroad results and a counter 4 proposal correcting the overbroad search or query. . 5 c. Upon reasonable request, a party shall disclose information relating to 6 network design, the types of databases, database dictionaries, the access control list and security 7 access logs and rights of individuals to access the system and specific files and applications, the 8 ESI document retention policy, organizational chart for information systems personnel, or the 9 backup and systems recovery routines, including, but not limited to, tape rotation and 10 destruction/overwrite policy. 11 3. 12 Format. a. ESI will be produced to the requesting party with searchable text, in a 13 format to be decided between the parties. Acceptable formats include, but are not limited to, native 14 files, multi-page TIFFs (with a companion OCR or extracted text file), single-page TIFFs (only 15 with load files for e-discovery software that includes metadata fields identifying natural document 16 breaks and also includes companion OCR and/or extracted text files), and searchable PDF. 17 b. Unless otherwise agreed to by the parties, files that are not easily converted 18 to image format, such as spreadsheet, database, and drawing files, will be produced in native 19 format. 20 c. Each document image file shall be named with a unique number (Bates 21 Number). File names should not be more than twenty characters long or contain spaces. When a 22 text-searchable image file is produced, the producing party must preserve the integrity of the 23 24 25 26 ORDER REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION PAGE - 4 1 underlying ESI, i.e., the original formatting, the metadata (as noted below) and, where applicable, 2 the revision history. 3 d. If a document is more than one page, the unitization of the document and 4 any attachments and/or affixed notes shall be maintained as they existed in the original document. 5 e. The full text of each electronic document shall be extracted (“Extracted 6 Text”) and produced in a text file. The Extracted Text shall be provided in searchable ASCII text 7 format (or Unicode text format if the text is in a foreign language) and shall be named with a 8 unique Bates Number (e.g., the unique Bates Number of the first page of the corresponding 9 production version of the document followed by its file extension). 10 4. De-duplication. The parties may de-duplicate their ESI production across custodial 11 and non-custodial data sources after disclosure to the requesting party, and the duplicate custodian 12 information removed during the de-duplication process tracked in a duplicate/other custodian 13 field in the database load file. 14 5. Email Threading. The parties may use analytics technology to identify email 15 threads and need only produce the unique most inclusive copy and related family members and 16 may exclude lesser inclusive copies. Upon reasonable request, the producing party will produce 17 a less inclusive copy. 18 6. Metadata fields. If the requesting party seeks metadata, only the following 19 metadata fields need be produced, and only to the extent it is reasonably accessible and non20 privileged: document type; custodian and duplicate custodians (or storage location if no 21 custodian); author/from; recipient/to, cc and bcc; title/subject; email subject; file name; file size; 22 file extension; original file path; date and time created, sent, modified and/or received; and hash 23 value. The list of metadata type is intended to be flexible and may be changed by agreement of 24 25 26 ORDER REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION PAGE - 5 1 the parties, particularly in light of advances and changes in technology, vendor, and business 2 practices. 3 D. Preservation of ESI 4 The parties have a common law obligation, as expressed in Fed. R. Civ. P. 37(e), to take 5 reasonable and proportional steps to preserve discoverable information in the party’s possession, 6 custody, or control. With respect to preservation of ESI: 7 1. Absent a showing of good cause by the requesting party, the parties shall not be 8 required to modify the procedures used by them in the ordinary course of business to back-up and 9 archive data; provided, however, that the parties shall preserve all discoverable ESI in their 10 possession, custody, or control. 11 2. The parties will supplement their disclosures in accordance with Fed. R. Civ. P. 12 26(e) with discoverable ESI responsive to a particular discovery request or mandatory disclosure 13 where that data is created after a disclosure or response is made (unless excluded under Sections 14 (D)(3) or (E)(1)-(2)). 15 3. Absent a showing of good cause by the requesting party, the following categories 16 of ESI need not be preserved: 17 a. Deleted, slack, fragmented, or other data only accessible by forensics. 18 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. 19 20 21 22 23 24 25 26 ORDER REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION PAGE - 6 1 2 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). 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 E. Privilege 1. A producing party shall create a privilege log of all documents fully withheld from production on the basis of a privilege or protection, unless otherwise excepted by this Order. Privilege logs shall include a unique identification number for each document and the basis for the claim (attorney-client privileged or work-product protection). For ESI, the privilege log may be generated using available metadata, including author/recipient or to/from/cc/bcc names; the subject matter or title; and date created. Should the available metadata provide insufficient information for the purpose of evaluating the privilege claim asserted, the producing party shall include such additional information as required by the Federal Rules of Civil Procedure. Privilege logs will be produced to all other parties no later than 30 days after delivering a production unless an earlier deadline is agreed to by the parties. 2. Redactions need not be logged so long as the basis for the redaction is clear on the redacted document. 3. 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. 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, electronically stored information (ESI) or information, whether inadvertent or otherwise, in this proceeding 24 25 26 ORDER REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION PAGE - 7 1 shall not, for the purposes of this proceeding or any other federal or state proceeding, constitute 2 a waiver by the producing party of any privilege applicable to those documents, including the 3 attorney-client privilege, attorney work-product protection, or any other privilege or protection 4 recognized by law. This Order shall be interpreted to provide the maximum protection allowed 5 by Fed. R. Evid. 502(d). The provisions of Fed. R. Evid. 502(b) do not apply. Nothing contained 6 herein is intended to or shall serve to limit a party’s right to conduct a review of documents, ESI 7 or information (including metadata) for relevance, responsiveness and/or segregation of 8 privileged and/or protected information before production. Information produced in discovery 9 that is protected as privileged or work product shall be immediately returned to the producing 10 party. 11 12 IT IS SO ORDERED. Dated this 27th day of January, 2025. 13 14 15 Robert S. Lasnik US District Judge 16 17 18 19 20 21 22 23 24 25 26 ORDER REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION PAGE - 8

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