United States of America v. Leaf Property Investments LLC et al

Filing 22

ORDER signed by Magistrate Judge William E Duffin on 1/18/2023, GRANTING 20 Stipulated Discovery Motion. (cc: all counsel)(mlm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
UNITED STATES OF AMERICA,
Plaintiff,
v.

Case No. 22-CV-1037

LEAF PROPERTY INVESTMENTS, LLC,
SAM JAMES LEAF,
DENNIS PARKER,
Defendants.
STIPULATED DISCOVERY ORDER

Based on the stipulation of the parties and the factual representations set forth
therein (ECF No. 20), IT IS THEREFORE ORDERED THAT:
I.

PRESERVATION AND PRODUCTION OF DOCUMENTS
A.

Preservation
1.

The Parties agree that, by preserving documents, tangible things, and ESI
for the purpose of this litigation, they are not conceding that such material
is discoverable, nor are they waiving any claim of privilege.

2.

This Stipulation and Order does not modify any Party’s obligation to
maintain and preserve documents, tangible things, and ESI where

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otherwise required by law, pursuant to a court order or administrative
order, or in response to other anticipated litigation.
B.

Limitations on Obligation to Preserve and Produce:
Subject to § I.D.1, for purposes of this action, the Parties agree to limit the scope of

preservation as described in this section.
1.

The Parties agree that they do not need to take specific, affirmative steps to
preserve for purposes of this litigation the following categories of ESI:
a.

Delivery or read receipts of e-mail;

b.

Logs or other data from video-conferencing (including, e.g., Skype or
Zoom) or instant messaging tools involving: (i) attorneys for the United
States (and their staff); (ii) attorneys for Defendant(s) in this case (and
their staff); and/or attorneys for the United States (and their staff) and
attorneys for the United States Department of Housing and Urban
Development (and their staff).

c.

Temporary or cache files, including internet history, web browser cache,
and cookie files, wherever located;

d.

Internally facing server system logs;

e.

Externally facing or hosted file sharing system logs;

f.

System data from photocopiers or fax machines;

g.

Auto-saved copies of electronic documents;
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h.

Deleted, slack, fragmented, or other data only accessible by forensics;
and

i.

Random access memory (“RAM”), temporary files, or other ephemeral
data that are difficult to preserve without disabling the operating
system.

j.

Logs of or other data from audio calls (including, e.g., landline phones,
mobile devices, and Voice Over Internet Protocol (“VOIP”)) made to or
from (i) attorneys for the United States (and their staff) and/or (ii)
attorneys for Defendant(s) in this case (and their staff);

k.

Voicemail messages on the voicemail systems of (i) attorneys for the
United States (and their staff); (ii) attorneys for Defendant(s) in this case
(and their staff); and/or attorneys for the United States Department of
Housing and Urban Development (and their staff).

2.

When duplicate copies 1 of relevant ESI exist in more than one location, this
Order does not require a Party to preserve all duplicates as follows:
a.

ESI existing or stored on mobile or portable devices (e.g., smartphones,
tablets, thumb drives, CDs, DVDs, etc.) or file sharing sites does not
need to be preserved pursuant to this Order provided that duplicate

“Duplicates” in the context of ESI are copies of identical documents identified with matching
MD-5 hashes, which is a mathematically-calculated 128 bit value used to create a unique
identifier for an electronic file.
1

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copies of the ESI, including metadata, are preserved in another location
reasonably accessible to the Party.
b.

ESI on backup tapes, continuity of operations or disaster recovery
systems, data or system mirrors or shadows, and other systems that are
used primarily for the purpose of system recovery or information
restoration and are not reasonably accessible (“Backup Systems”) need
not be preserved pursuant to this Order provided that duplicate copies of
relevant ESI have been preserved in another reasonably accessible
location. However, if a Party knows that relevant ESI exists only on a
Party’s Backup System, the Party will take reasonable steps to preserve
ESI on the Backup System until the Parties can agree on how and when
the ESI will be preserved or produced. If the Parties cannot reach
agreement, they will seek a ruling from the Court.

3.

The Parties agree that they do not need to take specific, affirmative steps to
preserve for purposes of this litigation relevant documents, tangible things,
or ESI (including internal communications, drafts, versions, and
collaboration on case-related work) created by and, if shared with any
other(s), exchanged solely among: 1) attorneys for the United States (and
their staff); 2) attorneys for Defendants (and their staff); and/or 3) attorneys

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for the United States (and their staff) and attorneys for the Department of
Housing and Urban Development (and their staff).
4.

The Parties agree not to seek discovery of documents, tangible things, and
ESI that they have agreed not to preserve pursuant to § I.B.1-3 above. As
provided in § I.D.1 below, the Parties do not need to list such items on a
privilege log prepared and served in connection with discovery in this case.

C.

Identification & Production of Documents, Tangible Things and ESI
1.

Production Format
a.

ESI and hard copy documents must be produced as specified herein.

b.

Except as provided in § I.C.1.g below for specific types of documents
and data, ESI shall be produced in its native form and must not be
converted to another format (e.g., PDF). ESI must be collected and
produced in a way that preserves existing metadata.

c.

Paper documents must be scanned at 300 d.p.i. and produced as
searchable PDFs, unitized as one document per PDF except as provided
in § I.C.1.g below for specific types of documents and data.

d.

PDFs shall be black-and-white, unless a black-and-white format would
obscure or degrade information (e.g., color-coded graphs or charts,
printed photographs, or redlines), in which case the Party will produce
a color PDF. Nothing in this provision prevents a Party from scanning
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and producing paper documents as color PDFs, nor does anything in
this provision prevent a Party from producing color PDFs if they choose.
e.

If a document has been prepared in several copies, or additional copies
have been made that are not identical (or are no longer identical by
reason of subsequent notation or other modification of any kind
whatever), each non-identical copy is a separate document.

f.

Except for native files, the United States will produce responsive
documents Bates-stamped with a prefix to indicate that the United
States is producing the document (i.e., US______). Except for native files,
Defendants will produce responsive documents accompanied by a
Bates-stamp schema format, including the prefix to be used for those
documents (i.e., LPI, LEAF, DP______). For native files, which cannot be
Bates-stamped, the Parties will produce the native files with the original
file name as well as a spreadsheet index, table, or list that, for each native
file, includes the original file name, production path, and an assigned
sequential document identification number.

g.

Specifications for Specific File Types:
i.

Emails will be produced as native files in .msg or .pst format. The
Parties agree to produce all responsive non-privileged emails in

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each thread or chain and will not restrict productions to the most
inclusive emails.
ii.

The Parties will meet and confer regarding the production of text
messages.

iii.

Audio files and video files should be produced as native files,
unless the native form is a proprietary format, in which case the
file(s) should be converted into a non-proprietary format that can
be played using Windows Media Player and Power Media Player
for Dell.

iv.

Excel or other types of spreadsheets shall be produced as native files
with all cells unlocked.

v.

PowerPoint files should be produced as native files with all notes
unaltered and viewable for each file.

vi.

Social media content (including comments, “likes,” sharing, and
other interactions with the post(s)) shall be produced as PDFs,
including information about the participants and the date / time of
the communications, if available

vii.

For production of tangible things and production of information
from a structured database, proprietary software, vendor-managed
software, or other source from which native production is not
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reasonably practicable, the parties will meet and confer before
making any production to attempt to agree on a reasonable and
proportional form of production that maintains the integrity of the
tangible things or documents.
2.

Production Specifications
a.

Responsive documents and ESI will be produced via .zip file(s)
uploaded to an electronic file transfer site, in accordance to the written
instructions provided by counsel for the Requesting Party or as
otherwise agreed by the Parties. In the case of documents and ESI
produced by the United States, responsive information will be produced
via .zip file(s) uploaded to the Justice Enterprise File Sharing System
(JEFS).

b.

Productions via electronic file transfer will be uploaded in a manner (or
otherwise clearly labeled) to indicate (1) the Party producing the
information, (2) the date of the production, and (3) the Bates-range(s).

c.

If a Party needs to redact a portion of a document for which only a native
file would be produced, the Parties will meet and confer regarding
production of the redacted document.

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d.

The parties agree to remove all encryption or password protection for
all ESI produced. In the alternative, the parties agree to provide
passwords or assistance needed to open encrypted files.

D.

Privileged Documents, Tangible Things and ESI
If any discovery request appears to call for the production of documents,

1.

tangible things or ESI covered by § I.B, the responding party is not required
to produce or identify such information on a privilege log. However, if a
party preserves relevant documents, tangible things, or ESI covered by §
I.B, in order to support a claim or defense in this case, the Party shall
produce such information or identify it on a privilege log notwithstanding
this subsection.
Inadvertent Disclosure of Privileged or Protected Information

2.
a.

The Parties agree that a disclosure of information contained within
documents, tangible things, and ESI that is protected by attorney-client
privilege, work product protection, common interest privilege, doctorpatient privilege, and/or applicable governmental privileges (such as
deliberative process) does not operate as a subject matter waiver in this
case if: 1) the disclosure is inadvertent; 2) the holder of the privilege or
protection took reasonable steps to prevent disclosure; and 3) the holder
promptly took reasonable steps to rectify the error.
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b.

If the producing Party inadvertently discloses information that it asserts
is privileged or protected, it will notify the receiving party within 14
days of discovery of disclosure and provide the production date,
number, and volume of the disc or drive on which the production was
produced (“production media”), and the Bates number(s) or Document
ID (for native files) of all material that it believes contains the
inadvertently disclosed information.

c.

If a production contains information that the receiving Party believes is
privileged or protected and was inadvertently produced, it will
promptly notify the producing Party and provide the Bates number(s)
or Document ID (for native files) of the item it believes was
inadvertently produced. Within 14 days after receiving notification, the
producing Party may make a written request for return of the material.
If the producing Party does not send a written request for return of the
material to the receiving Party within 14 days, the producing Party
waives all claims of privilege or protection as to the material, but this
still does not operate as a subject matter waiver.

d.

When the receiving Party receives a written demand for return of the
material, it will make reasonable, good faith efforts to promptly
sequester, return or destroy all inadvertently produced material
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identified by the producing party. If copies of inadvertently produced
materials are located or stored on the receiving Party’s Backup
System(s), those copies need not be affirmatively removed but, rather,
the receiving Party may overwrite those copies according to its normal
records management procedures.
e.

If the receiving Party must destroy or delete production media (e.g., CD,
DVD, thumb drive, or downloaded file(s)) in order to destroy or delete
inadvertently produced material, the producing Party will provide a
duplicate copy of the production media minus only the inadvertently
produced material within 14 days of its written request for return of the
material to the receiving Party.

f.

If the receiving Party intends to challenge the claim of privilege or
protection or the inadvertence of the production, it will keep one copy
of the inadvertently produced material in a sealed envelope or a
sequestered location while seeking a ruling from the Court. Nothing in
this Stipulation prevents access by a receiving Party’s information
technology or security personnel from accessing, in the normal course
of their work, systems or locations where inadvertently produced
material is sequestered.

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g.

This section does not alter the substantive law regarding when a party’s
strategic use in litigation of otherwise privileged information may
oblige that party to waive the privilege regarding other information
concerning the same subject matter.

E.

Costs of Document Production
Each Party shall bear the costs of producing its own documents, tangible things,

and ESI.
II.

MISCELLANEOUS
A.

The Stipulation may be executed in counterparts.

B.

The terms of this Stipulation and Order are not exhaustive. Each Party reserves
the right to subsequently request to meet and confer to address any discovery
matters, including forms of production and other matters not addressed
herein.

C.

None of the meet and confer provisions of this Stipulation shall be construed
to extend the time within which a Party must respond to a discovery request.
Dated at Milwaukee, Wisconsin this 18th day of January, 2023.

_________________________
WILLIAM E. DUFFIN
U.S. Magistrate Judge

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