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Equal Employment Opportunity Commission v. Rch Colorado, LLC

United States District Court, D. Colorado

January 15, 2016

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
RCH COLORADO, LLC, F/K/A LUNA GAMING CENTRAL CITY, LLC, D/B/A FORTUNE VALLEY CASINO, D/B/A FORTUNE VALLEY HOTEL AND CASINO, AND D/B/A RESERVE CASINO HOTEL, Defendant.

PROTOCOL FOR SEARCHES OF RELEVANT ESI

NINA Y. WANG, Magistrate Judge.

The below is a following protocol the Parties have agreed to for governs the search and production of electronically stored information ("ESI") in this civil action e litigation.

I. Initial Framework:

Electronically stored information ("ESI") discovery should be handled as effectively and efficiently as possible, taking into account proportionality, and with a maximum amount of collaboration. Accordingly, this protocol is intended to be an initial working framework, which may need adjustment as discovery is ongoing. Should adjustment or modification be required, the Parties will revisit the protocol and confer and collaborate over any necessary adjustments. Should the Parties be unable to reach an agreement on changes to the protocol, the Parties will call the Court for a telephone conference to resolve the issue.

II. Preservation Obligations:

a. General Scope.

Unless otherwise indicated, the relevant time period shall be January 1, 2010 to the present. To the extent that Defendant does not have possession, custody, and control over its predecessor's documents, it is not expected that such documents will fall within Defendant's discovery obligations.
Plaintiff's position: Unless otherwise indicated, the relevant time period shall be January 1, 2010 to present. The Parties shall preserve electronically stored information from the relevant time period that relates to the claims and defenses in this case.
Plaintiff believes a starting of date of January 1, 2010 is reasonable because it represents approximately one year before Luna Gaming Central City, LLC ("Luna Gaming"), the predecessor entity to Defendant, purchased and took over operations of Fortune Valley Hotel and Casino ("Fortune Valley"). One of the main events at issue in Plaintiff's complaint is Luna Gaming's failure to hire the Charging Parties and other aggrieved individuals when it took over the casino's operations from Centaur Colorado, LLC ("Centaur") on January 25, 2011. Although Defendant claims that Luna Gaming was not incorporated until September 2, 2010, it is possible that electronic data from computers or servers in Defendant's possession and used by Luna Gaming executives involved in the purchase of Fortune Valley spans back until January 1, 2010. Indeed, it is possible that the sole purpose of forming Luna Gaming was to purchase and take over the operations of Fortune Valley. Personnel aspects of that takeover could have been discussed prior to the formation of Luna Gaming. Furthermore, it is self-evident that if Defendant is not in possession of electronic data prior to the formation of Luna Gaming, it is under no duty to preserve ESI created prior to that date. Defendant therefore suffers no prejudice from using a starting date of January 1, 2010.
Defendant's position: The Parties shall preserve electronically stored information currently in their possession, from September 2, 2010 to the present, that relates to the claims and defenses in this case. RCH Colorado, LLC, f/k/a Luna Gaming Central City LLC, was not incorporated until September, 2, 2010, and therefore cannot be expected to preserve information that existed prior to its own formation.

b. Specific ESI to be preserved.

i. Defendant RCH Colorado, LLC, f/k/a Luna Gaming Central City, LLC, d/b/a Fortune Valley Casino, d/b/a Fortune Valley Hotel and Casino, and d/b/a Reserve Casino Hotel (collectively "Defendant") shall preserve all ESI, including electronic communications and documents, related to the following: a) personnel aspects of Defendant's purchase of the assets of the Fortune Valley Hotel and Casino and assumption of the casino's operations; b) applications received by Defendant prior to and/or during the assumption of casino operations in January 2011, including all forms and attachments, and offers of employment or rejection relating to same; c) documents or communications relating to decisions to hire or reject applicants who applied for employment prior to and/or during the assumption of casino operations in January 2011; d) documents or communications relating to hiring criteria, applicant lists, interview notes, evaluations, and any policies or training materials concerning Defendant's hiring policies or practices prior to and/or during the assumption of casino operations in January 2011; e) any Human
Resources Information ("HRI") regarding workforce demographics related to age and sex; f) any electronic personnel records and employee payroll and benefits records; g) any electronically maintained employee handbooks or manuals, including drafts; h) all documents or communications regarding complaints of sex or age discrimination and Defendant's response or investigation related to same; i) any internal Equal Employment Opportunity ("EEO") studies, analyses, or investigations related to age or sex; and, j) any documents and communications discussing or referring to the charges of discrimination or this lawsuit.
Defendant shall preserve all electronic advertisements soliciting job applications for the period of at least January 1, 2010 to the filing of the administrative complaints underlying these actions, or January 2, 2012, whichever is later. Plaintiff's Position: In addition, Plaintiff's position is that Defendant shall preserve all electronic advertisements soliciting job applications for the period January 1, 2010 to the present. Such advertisements may indicate the types of employees Defendant tends to solicit as well as the job duties and requirements of employment with Defendant. The fact ...

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