Travelers Property Casualty Company of America v. Cannon & Dunphy et al
Filing
25
ORDER signed by Judge Rudolph T. Randa on 1/28/2014. (ECF No. 8 in 13-C-931) MOTION to Remand DENIED. (ECF No. 13 in 13-C-877) MOTION to Dismiss or Stay DENIED. (ECF No. 19 in 13-C-877 and ECF No. 11 in 13-C-931) MOTION to Consolidate Cases GRANTED; All future papers to be filed and docketed in Case No. 13-C-877. Telephonic Scheduling Conference set for 3/25/2014 at 10:30 AM (Central Time) before Judge Rudolph T. Randa-the Court will initiate the call. (cc: all counsel)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TRAVELERS PROPERTY CASUALTY
COMPANY OF AMERICA,
Plaintiff,
-vs-
Case No. 13-C-877
CANNON & DUNPHY, S.C.,
Defendant.
CANNON & DUNPHY, S.C.,
Plaintiff,
-vs-
Case No. 13-C-931
TRAVELERS PROPERTY CASUALTY
COMPANY OF AMERICA,
Defendant.
DECISION AND ORDER
These cases relate to a state court lawsuit between rival personal injury firms.
In that case, the principals of Habush, Habush & Rottier, S.C. alleged that Cannon &
Dunphy, S.C. (and its principals) violated their statutory right to privacy by bidding on
the electronic keywords “habush” and “rottier” on internet search engines, thus
assuring that links to Cannon & Dunphy‟s website would appear as a “sponsored link”
when users perform searches using the words Habush and/or Rottier. Cannon &
Dunphy tendered the defense of this lawsuit to Travelers Property Casualty Company,
but Travelers refused to provide a defense. After prevailing, see Habush v. Cannon,
828 N.W.2d 876 (Wis. Ct. App. 2013), Cannon & Dunphy sent a demand letter to
Travelers, threatening to sue if Travelers didn‟t pay $454,675.39 in attorney‟s fees and
costs, plus interest.
Instead of paying, Travelers filed the above-captioned declaratory judgment
action. Case No. 13-C-877. The next day, Cannon & Dunphy filed suit in Milwaukee
County Circuit Court, alleging claims for breach of contract, breach of the implied
covenant of good faith and fair dealing, and also for declaratory judgment. Travelers
timely removed.
Case No. 13-C-931.
Now before the Court are the following
motions: (1) Cannon & Dunphy‟s motion to dismiss or stay the „877 case; (2) Cannon
& Dunphy‟s motion to remand the „931 case; and (3) Travelers‟ motion to consolidate
these two cases.
In the first motion, Cannon & Dunphy argues that the Court should decline
jurisdiction
over
Travelers‟
declaratory
judgment
action
pursuant
to
the
Wilton/Brillhart abstention doctrine, under which the Court has discretion to dismiss or
stay a declaratory judgment action when parallel proceedings are pending in state
court. Travelers Prop. Cas. v. Good, 689 F.3d 714, 717 (7th Cir. 2012) (citing Wilton
v. Seven Falls Co., 515 U.S. 277 (1995) and Brillhart v. Excess Ins. Co. of Am., 316
U.S. 491 (1942)). At the risk of stating the obvious, right now there are no parallel
proceedings in state court because the state court action was removed to federal court.
-2-
The Court‟s discretion under Wilton/Brillhart “does not turn on the existence of
parallel proceedings,” but “parallel proceedings do figure in the holding of Wilton.”
Med. Assur. Co., Inc. v. Hellman, 610 F.3d 371, 378-79 (7th Cir. 2010). Accordingly,
the Court will consider the motion to remand the „931 action first. If the „931 action
should be remanded, there would be a parallel action to defer to with respect to the
„877 action, making abstention a more appropriate course of action.
Cannon & Dunphy‟s motion to remand also invokes Wilton/Brillhart. Again,
there are no parallel proceedings, but the Court will ignore that issue for present
purposes. Instead, there is a threshold issue for the Court to consider because the
removed action is not a pure declaratory judgment action. When “both declaratory and
non-declaratory relief is sought, does the Wilton/Brillhart standard even apply, and if
so, under what circumstances?” R.R. Street & Co., Inc. v. Vulcan Materials Co., 569
F.3d 711, 715 (7th Cir. 2009). In R.R. Street, the Seventh Circuit adopted the Ninth
Circuit‟s approach to this issue, asking whether the “claims seeking non-declaratory
relief are independent of the declaratory claim. If they are not, the court can exercise
its discretion under Wilton/Brillhart and abstain from hearing the entire action. But if
they are, the Wilton/Brillhart doctrine does not apply . . .” Id. at 716-17. A claim for
non-declaratory relief is independent of the declaratory claim if it “has its own federal
subject-matter-jurisdictional basis” and “its viability is not wholly dependent upon the
success of the declaratory claim.” Id. at 716 n.6. In other words, the Court must
adjudicate non-declaratory claims that “„exist independent of any request for purely
-3-
declaratory relief, that is, claims that would continue to exist if the request for a
declaration simply dropped from the case.‟” Id. (quoting United Nat’l Ins. Co. v. R&D
Latex Corp., 242 F.3d 1102, 1112 (9th Cir. 2001) (emphasis in original)).
In its complaint, Cannon & Dunphy seeks a declaration that “pursuant to the
terms of the policy Travelers issued . . . and applicable law, coverage for the
allegations in the Habush complaint was, at a minimum, fairly debatable, and that
Travelers was obligated to exercise one of its options for resolving coverage
obligations, or face liability for its failure to defend and indemnify . . .” Complaint, ¶
41. Cannon & Dunphy also alleges that Travelers “breached its contractual duties” by
“unilaterally denying coverage for the Habush litigation, . . . refusing to defend such
litigation, . . . not intervening to obtain a declaratory judgment ruling on its duty to
defend and indemnify, [and] refusing to defend or reimburse” Cannon & Dunphy‟s
defense costs as a result of the litigation. Id., ¶ 34. As a result, Cannon & Dunphy
“incurred substantial attorney‟s fees and defense costs, and other compensable injuries
and damages, all to its damage in an amount to be determined at a trial of this matter.”
Id., ¶ 36.
Cannon & Dunphy argues that the success of its breach of contract claim
depends upon the outcome of its declaratory judgment claim, but as the Seventh
Circuit observed, “[e]ven if the legal issues involved in deciding the declaratory claim
would be dispositive of all of the non-declaratory claims, that would not necessarily
mean that the latter are not independent of the former.” R.R. Street at 717 n.9.
-4-
To
illustrate, Cannon & Dunphy cites a case where the policyholder requested fees under
a fee-shifting statute alongside its request for declaratory relief. Keown v. Tudor Ins.
Co., 621 F. Supp. 2d 1025, 1030 (D. Hawaii 2008) (“Where an insurer has contested
its liability under a policy and is ordered by the courts to pay benefits under the policy,
the policyholder . . . shall be awarded reasonable attorney‟s fees and the costs of suit,
in addition to the benefits under the policy”) (quoting Haw. Rev. Stat. § 431:10-242).
This claim was obviously dependent upon the declaratory claim because the only way
to be reimbursed for the cost of obtaining a declaration of coverage was to actually
obtain a declaration of coverage. Id. (statute “does not create a separate cause of
action for attorneys‟ fees, but instead conditions the payment of attorneys‟ fees and
costs on the insured prevailing on its liability claim”). By contrast, Cannon & Dunphy
doesn‟t need a separate declaration regarding Travelers‟ coverage obligations in order
to succeed on its breach of contract claim. The essential inquiry is the same under
both claims – does the policy provide coverage? – but the Court does not need to issue
an order declaring that Travelers should have provided a defense before finding that
Cannon & Dunphy was damaged by Travelers‟ failure to provide a defense. Quite
frankly, the Court doesn‟t even understand why Cannon & Dunphy needs or wants a
declaration in the first instance.
The Habush litigation is over, so there are no
continuing obligations for Travelers to fulfill in that regard. Whatever the reason or
justification for pleading a declaratory claim – the likely answer is that it was pled in
an effort to avoid a federal forum – Cannon & Dunphy‟s breach of contract claim,
-5-
which has an independent jurisdictional basis, would be a viable claim if the
declaratory claim was eliminated. See, e.g., R&D Latex Corp., 242 F.3d at 1113 (“We
can see no reason . . . why a reimbursement claim must be joined with a claim for
declaratory relief”) (emphasis in original).
Cannon & Dunphy tries to distinguish the holding in R.R. Street, arguing that
the plaintiffs in that case brought claims for common law indemnity and promissory
estoppel as alternative theories in the event they could not prove that the policy
required coverage. R.R. Street did not distinguish between particular types of claims.
Instead, the court held that all of the non-declaratory claims were “independent of the
declaratory claim because they could stand alone in federal court – both
jurisdictionally and substantively – irrespective of the declaratory claim.” R.R. Street
at 717. “Were the declaratory claim dropped from the case, the district court would
still have diversity jurisdiction over the plaintiffs‟ breach of contract, common law
indemnity, and promissory estoppel claims that seek relief in the form of money
damages, and the requested declaratory relief is not a prerequisite to resolution of those
claims.” Id. So it is here. R.R. Street controls.
In the alternative, Cannon & Dunphy argues that the Court should remand the
„931 action under the Colorado River abstention doctrine. R.R. Street at 717 (“subject
to the presence of exceptional circumstances under the Colorado River doctrine, the
court must hear the independent non-declaratory claims”). However, the Seventh
Circuit has “understood” that the “existence of a parallel proceeding – i.e. an
-6-
overlapping case in state court – is a requirement for exercising „Colorado River
abstention.‟” Med. Assur. Co. at 378 (citing Beck v. Dobrowski, 559 F. 3d 680, 686
(7th Cir. 2009)); see also Adkins v. VIM Recycling, Inc., 644 F.3d 483, 508 (7th Cir.
2011) (“The test articulated for the invocation of the Colorado River doctrine requires
parallel litigation and extraordinary circumstances”). There being no parallel state
court proceeding, Colorado River abstention is inapplicable.
Accordingly, the motion to remand will be denied, which leads the Court back
to Cannon & Dunphy‟s motion to dismiss or stay Travelers‟ action for a declaratory
judgment (the „877 case). At this point, Cannon & Dunphy‟s motion is essentially
moot. Now that the „931 action is going to proceed in federal court, dismissing or
staying the „877 action would serve no useful purpose. See, e.g., Nationwide Ins. v.
Zavalis, 52 F.3d 689, 693 (7th Cir. 1995) (listing factors to consider, including
“whether the declaratory suit presents a question distinct from the issues raised in the
state court proceeding” and “whether comparable relief is available to the plaintiff
seeking a declaratory judgment in another forum or at another time”). The two cases
will be consolidated. Fed. R. Civ. P. 42(a)(2); Civil L.R. 42.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY
ORDERED THAT:
1.
Cannon & Dunphy‟s motion to remand [ECF No. 8 in Case No. 13-C-
931] is DENIED;
2.
Cannon & Dunphy‟s motion to dismiss or stay [ECF No. 13 in Case No.
-7-
13-C-877] is DENIED;
3.
Travelers‟ motion to consolidate [ECF No. 19 in Case No. 13-C-877,
ECF No. 11 in Case No. 13-C-931] is GRANTED. All future papers will be filed and
docketed in Case No. 13-C-877;
4.
Pursuant to Federal Rule of Civil Procedure 16(b), a telephonic
scheduling conference is scheduled for March 25, 2014 at 10:30 a.m. (Central Time).
Please be available at that time. The Court will initiate the call.
5.
The purpose of the conference call is to establish a scheduling order
which will limit the time: (a) to join other parties and to amend the pleadings; (b) to
file motions; (c) to complete discovery;
6.
The scheduling order may also: (a) modify the timing for disclosure
under Rules 26(a) and 26(e)(1) and of the extent of discovery to be permitted; (b)
provide for the disclosure or discovery of electronically stored information; (c) include
any agreements the parties reach for asserting claims of privilege or protection as trial
preparation material after information is produced; (d) the date or dates for conferences
before trial, a final pretrial conference, and trial; and (e) any other matters appropriate
in the circumstances of the case;
7.
The time limitations set forth in the scheduling order may only be
modified for good cause and with the Court‟s consent. Fed. R. Civ. P. 16(b)(4);
8.
The parties should be prepared to discuss the matters listed in Civil
Local Rule 16(a)(1). Please refer to Attachment A. Special attention should also be
-8-
given to Rule 26(f)(1), which requires the parties to conduct a settlement/discovery
conference at least twenty-one (21) days prior to the initial scheduling conference
described above. The Rule 26(f) conference may be conducted by telephone. Rules
26(f)(2) and (3) mandate that the parties, within fourteen (14) days of their conference:
(a) file a written report outlining the proposed discovery plan they have developed at
their Rule 26(f) conference; and (b) make the required initial disclosures under Rule
26(a) regarding witnesses and documents. In addition to the matters specified in Rules
26(f)(2) and (3), the Court requests that the proposed discovery plan submitted by the
parties include one or two sentences stating the nature of the case;
9.
The written report must include the telephone numbers where the parties
can be reached for this call;
10.
In addition, the Court is participating in the Seventh Circuit Electronic
Discovery Pilot Program and has adopted the Principles Relating to the Discovery of
Electronically Stored Information.
Counsel should be fully prepared to discuss
methods and techniques to accomplish cooperative fact-finding in their case at the
initial status conference. Before the initial status conference, counsel must also meet
and discuss the Principles Relating to the Discovery of Electronically Stored
Information. At the initial status conference, counsel must be prepared to discuss
what agreements they have reached regarding discovery of Electronically Stored
Information (“ESI”) and what area of disagreement they have with regard to discovery
of ESI. After discussing the matter with counsel, the Court will determine whether to
-9-
enter the Standing Order Relating to the Discovery of Electronically Stored
Information in their particular case. (Please refer to Attachments B & C).
Dated at Milwaukee, Wisconsin, this 28th day of January, 2014.
BY THE COURT:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge
- 10 -
Civil L. R. 16. Pretrial Conferences; Scheduling; Management; Alternative Dispute
Resolution.
(a) Preliminary Pretrial Conferences.
(1)
A judge may require the parties to appear to consider the future conduct of
the case. The parties must be prepared to discuss the matters enumerated
in Fed. R. Civ. P. 16 and Fed. R. Civ. P. 26(f). The parties also should be
prepared to state:
(A)
the nature of the case in 1 or 2 sentences;
(B)
any contemplated motions;
(C)
the parties’ discovery plan, including the amount of further
discovery each party contemplates, the approximate time for
completion of discovery, and any disputes regarding discovery;
(D)
whether the parties anticipate the disclosure or discovery of
electronically stored information;
(E)
whether the parties have reached an agreement for asserting postproduction claims of privilege or of protection as trial-preparation
material, and whether the parties request the judge to enter an order
including the agreement;
(F)
whether settlement discussions have occurred;
(G)
the basis for the Court’s subject matter jurisdiction; and
(H)
such other matters as may affect further scheduling of the case for
final disposition.
Attachment A
CONSIDERATION OF ISSUES CONCERNING
ELECTRONICALLY STORED INFORMATION (“ESI”)
Experience teaches that unless conducted with careful planning and a spirit of cooperation,
discovery of ESI can result in an unnecessarily high level of conflict, expense and delay in
resolving cases on the merits. That is why the Court has endorsed The Sedona Conference®
Cooperation Proclamation dated July 2008.
To further advance the goal of having parties conduct discovery of ESI in a cooperative and costeffective manner, this Court has adopted the Standing Order Relating to the Discovery of
Electronically Stored Information. At the Rule 26(f) planning conference, the parties shall
address the issues discussed in the Standing Order, including but not limited to those set forth in
Section 2.01(a)(1)-(5). In the report of the planning conference, the parties shall set forth:
(a) Whether they anticipate discovery of ESI in the case;
(b) What agreements they have reached regarding discovery of ESI; and
(c) What areas of disagreement they have with regard to discovery of ESI.
After reviewing the report of the planning conference and discussing the matter with the parties,
the Court will determine whether the Standing Order should apply in this case.
Attachment B
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
___________________________________,
Plaintiff,
Case No. _____________________
vs.
___________________________________,
Defendant.
This Court is participating in the Pilot Program initiated by the Seventh Circuit Electronic
Discovery Committee. Parties and counsel in the Pilot Program with civil cases pending in this
Court shall familiarize themselves with, and comport themselves consistent with, that committee's
Principles Relating to the Discovery of Electronically Stored Information. For more information
about the Pilot Program please see the web site of The Seventh Circuit Bar Association,
www.7thcircuitbar.org. If any party believes that there is good cause why a particular case should
be exempted, in whole or in part, from the Principles Relating to the Discovery of Electronically
Stored Information, then that party may raise such reason with the Court.
General Principles
Principle 1.01 (Purpose)
The purpose of these Principles is to assist courts in the administration of Federal Rule of
Civil Procedure 1, to secure the just, speedy, and inexpensive determination of every civil case, and
to promote, whenever possible, the early resolution of disputes regarding the discovery of
electronically stored information ("ESI") without Court intervention. Understanding of the
feasibility, reasonableness, costs, and benefits of various aspects of electronic discovery will
inevitably evolve as judges, attorneys and parties to litigation gain more experience with ESI and
as technology advances.
Attachment C
Page 1 of 8
Principle 1.02 (Cooperation)
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.
Principle 1.03 (Discovery Proportionality)
The proportionality standard set forth in Fed. R. Civ. P. 26(b)(2)(C) should 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 responses should be reasonably
targeted, clear, and as specific as practicable.
Early Case Assessment Principles
Principle 2.01 (Duty to Meet and Confer on Discovery and to Identify Disputes for Early
Resolution)
(a)
Prior to the initial status conference with the Court, counsel shall meet and discuss
the application of the discovery process set forth in the Federal Rules of Civil Procedure and these
Principles to their specific case. Among the issues to be discussed are:
(1)
the identification of relevant and discoverable ESI and documents, including
methods for identifying an initial subset of sources of ESI and documents
that are most likely to contain the relevant and discoverable information as
well as methodologies for culling the relevant and discoverable ESI and
documents from that initial subset (see Principle 2.05);
(2)
the scope of discoverable ESI and documents to be preserved by the parties;
(3)
the formats for preservation and production of ESI and documents;
(4)
the potential for conducting discovery in phases or stages as a method for
reducing costs and burden; and
(5)
the potential need for a protective order and any procedures to which the
parties might agree for handling inadvertent production of privileged
Attachment C
Page 2 of 8
information and other privilege waiver issues pursuant to Rule 502(d) or (e) of the Federal Rules
of Evidence.
(b)
Disputes regarding ESI that counsel for the parties are unable to resolve shall be
presented to the Court at the initial status conference, Fed. R. Civ. P. Rule 16(b) Scheduling
Conference, or as soon as possible thereafter.
(c)
The attorneys for each party shall review and understand how their client's data is
stored and retrieved before the meet and confer discussions in order to determine what issues must
be addressed during the meet and confer discussions.
(d)
If the Court determines that any counsel or party in a case has failed to cooperate and
participate in good faith in the meet and confer process or is impeding the purpose of these
Principles, the Court may require additional discussions prior to the commencement of discovery,
and may impose sanctions, if appropriate.
Principle 2.02 (E-Discovery Liaison(s))
In most cases, the meet and confer process will be aided by participation of an e-discovery
liaison(s) as defined in this Principle. In the event of a dispute concerning the preservation or
production of ESI, each party shall designate an individual(s) to act as e-discovery liaison(s) for
purposes of meeting, conferring, and attending court hearings on the subject. Regardless of whether
the e-discovery liaison(s) is an attorney (in-house or outside counsel), a third party consultant, or
an employee of the party, the e-discovery liaison(s) must:
(a)
be prepared to participate in e-discovery dispute resolution;
(b)
be knowledgeable about the party's e-discovery efforts;
(c)
be, or have reasonable access to those who are, familiar with the party's electronic
systems and capabilities in order to explain those systems and answer relevant questions; and
(d)
be, or have reasonable access to those who are, knowledgeable about the technical
aspects of e-discovery, including electronic document storage, organization, and format issues, and
relevant information retrieval technology, including search methodology.
Principle 2.03 (Preservation Requests and Orders)
(a)
Appropriate preservation requests and preservation orders further the goals of these
Principles. Vague and overly broad preservation requests do not further the goals of these Principles
Attachment C
Page 3 of 8
and are therefore disfavored. Vague and overly broad preservation orders should not be sought or
entered. The information sought to be preserved through the use of a preservation letter request or
order should be reasonable in scope and mindful of the factors set forth in Rule 26(b)(2)(C).
(b)
To the extent counsel or a party requests preservation of ESI through the use of a
preservation letter, such requests should attempt to ensure the preservation of relevant and
discoverable information and to facilitate cooperation between requesting and receiving counsel and
parties by transmitting specific and useful information. Examples of such specific and useful
information include, but are not limited to:
(1)
names of the parties;
(2)
factual background of the potential legal claim(s) and identification of
potential cause(s) of action;
(3)
names of potential witnesses and other people reasonably anticipated to have
relevant evidence;
(4)
relevant time period; and
(5)
other information that may assist the responding party in assessing what
information to preserve.
(c)
If the recipient of a preservation request chooses to respond, that response should
provide the requesting counsel or party with useful information regarding the preservation efforts
undertaken by the responding party. Examples of such useful and specific information include, but
are not limited to, information that:
(1)
identifies what information the responding party is willing to preserve and
the steps being taken in response to the preservation letter;
(2)
(3)
(d)
identifies any disagreement(s) with the request to preserve; and
identifies any further preservation issues that were not raised.
Nothing in these Principles shall be construed as requiring the sending of a
preservation request or requiring the sending of a response to such a request.
Principle 2.04 (Scope of Preservation)
(a)
Every party to litigation and its counsel are responsible for taking reasonable and
proportionate steps to preserve relevant and discoverable ESI within its possession, custody or
Attachment C
Page 4 of 8
control. Determining which steps are reasonable and proportionate in particular litigation is a fact
specific inquiry that will vary from case to case. The parties and counsel should address preservation
issues at the outset of a case, and should continue to address them as the case progresses and their
understanding of the issues and the facts improves.
(b)
Discovery concerning the preservation and collection efforts of another party may
be appropriate but, if used unadvisedly, can also contribute to the unnecessary expense and delay
and may inappropriately implicate work product and attorney-client privileged matter. Accordingly,
prior to initiating such discovery a party shall confer with the party from whom the information is
sought concerning: (I) the specific need for such discovery, including its relevance to issues likely
to arise in the litigation; and (ii) the suitability of alternative means for obtaining the information.
Nothing herein exempts deponents on merits issues from answering questions concerning the
preservation and collection of their documents, ESI, and tangible things.
(c)
The parties and counsel should come to the meet and confer conference prepared to
discuss the claims and defenses in the case including specific issues, time frame, potential damages,
and targeted discovery that each anticipates requesting. In addition, the parties and counsel should
be prepared to discuss reasonably foreseeable preservation issues that relate directly to the
information that the other party is seeking. The parties and counsel need not raise every conceivable
issue that may arise concerning their preservation efforts; however, the identification of any such
preservation issues should be specific.
(d)
The following categories of ESI generally are not discoverable in most cases, and if
any party intends to request the preservation or production of these categories, then that intention
should be discussed at the meet and confer or as soon thereafter as practicable:
(1)
"deleted," "slack," "fragmented," or "unallocated" data on hard drives;
(2)
random access memory (RAM) or other ephemeral data;
(3)
on-line access data such as temporary internet files, history, cache, cookies,
etc.;
(4)
data in metadata fields that are frequently updated automatically, such as
last-opened dates;
Attachment C
Page 5 of 8
(5)
backup data that is substantially duplicative of data that is more accessible
elsewhere; and
(6)
other forms of ESI whose preservation requires extraordinary affirmative
measures that are not utilized in the ordinary course of business.
(e)
If there is a dispute concerning the scope of a party's preservation efforts, the parties
or their counsel must meet and confer and fully explain their reasons for believing
that additional efforts are, or are not, reasonable and proportionate, pursuant to Rule
26(b)(2)(C). If the parties are unable to resolve a preservation issue, then the issue
should be raised promptly with the Court.
Principle 2.05 (Identification of Electronically Stored Information)
(a)
At the Rule 26(f) conference or as soon thereafter as possible, counsel or the parties
shall discuss potential methodologies for identifying ESI for production.
(b)
Topics for discussion may include, but are not limited to, any plans to:
(1)
eliminate duplicative ESI and whether such elimination will occur only
within each particular custodian's data set or whether it will occur across all
custodians;
(2)
filter data based on file type, date ranges, sender, receiver, custodian, search
terms, or other similar parameters; and
(3)
use keyword searching, mathematical or thesaurus-based topic or concept
clustering, or other advanced culling technologies.
Principle 2.06 (Production Format)
(a)
At the Rule 26(f) conference, counsel and the parties should make a good faith effort
to agree on the format(s) for production of ESI (whether native or some other reasonably usable
form). If counsel or the parties are unable to resolve a production format issue, then the issue should
be raised promptly with the Court.
(b)
The parties should confer on whether ESI stored in a database or a database
management system can be produced by querying the database for discoverable information,
resulting in a report or a reasonably usable and exportable electronic file for review by the
requesting counsel or party.
Attachment C
Page 6 of 8
(c)
ESI and other tangible or hard copy documents that are not text-searchable need not
be made text-searchable.
(d)
Generally, the requesting party is responsible for the incremental cost of creating its
copy of requested information. Counsel or the parties are encouraged to discuss cost sharing for
optical character recognition (OCR) or other upgrades of paper documents or non-text-searchable
electronic images that may be contemplated by each party.
Education Provisions
Principle 3.01 (Judicial Expectations of Counsel)
Because discovery of ESI is being sought more frequently in civil litigation and the
production and review of ESI can involve greater expense than discovery of paper documents, it is
in the interest of justice that all judges, counsel and parties to litigation become familiar with the
fundamentals of discovery of ESI. It is expected by the judges adopting these Principles that all
counsel will have done the following in connection with each litigation matter in which they file an
appearance:
(1)
Familiarize themselves with the electronic discovery provisions of Federal
Rules of Civil Procedure, including Rules 26, 33, 34, 37, and 45, as well as
any applicable State Rules of Procedure;
(2)
Familiarize themselves with the Advisory Committee Report on the 2006
Amendments to the Federal Rules of Civil Procedure, available at
http://www.uscourts.gov/rules/EDiscovery_w_Notes.pdf; and
(3)
Familiarize themselves with these Principles.
Principle 3.02 (Duty of Continuing Education)
Judges, attorneys and parties to litigation should continue to educate themselves on
electronic discovery by consulting applicable case law, pertinent statutes, the Federal Rules of Civil
Procedure, the Federal Rules of Evidence, The Sedona Conference® publications relating to
Attachment C
Page 7 of 8
electronic discovery1, additional materials available on web sites of the courts2, and of other
organizations 3 providing educational information regarding the discovery of ESI.4
ENTER:
Dated: __________________________
__________________________________________
Hon. Rudolph T. Randa
U.S. District Judge
1
http://www.thesedonaconference.org/content/miscFiles/publications_html?grp=wgs110
2
E.g. http://www.ilnd.uscourts.gov/home/
3
E.g. http://www.7thcircuitbar.org, www.fjc.gov (under Educational Programs and Materials)
4
E.g. http://www.du.edu/legalinstitute
Attachment C
Page 8 of 8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?