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Engl v. Natural Grocers by Vitamin Cottage, Inc.

United States District Court, D. Colorado

February 1, 2016

BERNHARD ENGL, individually and on behalf of all others similarly situated, Plaintiff,
NATURAL GROCERS BY VITAMIN COTTAGE, INC., a Delaware corporation, and VITAMIN COTTAGE NATURAL FOOD MARKETS, INC., a Colorado corporation, Defendants.

Siprut PC, Joseph J. Siprut Richard L. Miller II* John S. Marrese, Michael Obernesser, Cornelius P. Dukelow Abington Cole Ellery Attorneys For Plaintiff

Holland & Hart LLP, Romaine Marshall, Engels Tejeda, Wilson Elser Moskowitz Edelman & Dicker LLP Melissa K. Ventrone




This Order will govern discovery of electronically stored information ("ESI") in this case as a supplement to the Federal Rules of Civil Procedure, and any other applicable orders and rules.

The proposed plan is subject to amendment or supplementation based upon the results of anticipated future meet and confers by later agreements of the parties, if necessary, in light of further development, including, in particular, the parties' engagement of document hosting vendors and associated technical requirements. References are made to the Federal Rules of Civil Procedure for ease of reference.


The parties are aware of the importance the Court places on cooperation and commit to cooperate in good faith throughout the matter. The parties agree to cooperate in good faith regarding the disclosure and formulation of appropriate search methodologies, custodians, and potentially relevant noncustodial sources of ESI in advance of any search and/or collection to the extent they have not already done so.


The parties have identified liaisons to each other that are and will be knowledgeable about and responsible for discussing their respective ESI. Each e-discovery liaison will be, or have access to those who are, knowledgeable about the technical aspects of e-discovery, including the location, nature, accessibility, format, collection, search methodologies, and production of ESI in this matter. The parties will rely on the liaisons, as needed, to confer about ESI and to help resolve disputes without court intervention.


1. The parties have preliminarily discussed and will meet and confer in an effort to reach agreement by no later than February 3, 2016, about the appropriate scope and limitations of both preservation and production of ESI in this case, including the number and identity of likely custodians; relevant date ranges; locations of potentially relevant data; timing of productions (including phased productions such as early production of information collected and produced in the context of other litigation or regulatory investigations or inquiry to facilitate future targeted discovery and production from more readily accessible sources of information, including certain types and/or sources of ESI, in the early stages of production); and ESI in the possession, custody or control of non-parties. No party is presently aware of any preservation issues that may impact the availability of potentially relevant information or data. To the extent counsel for a party becomes aware of such preservation issues, it shall take steps to promptly address the issue with opposing counsel to assess the impact on the litigation and the appropriate next steps. The parties agree that preservation of potentially relevant ESI will be reasonable and appropriate.

2. The parties agree to supplement this Joint E-Discovery Plan by February 12, 2016, regarding any agreements reached and any areas in dispute as a result of the meet and confer process to take place between now and February 3, 2016.

3. As defined in the Rules, the parties agree to take the proportionality considerations addressed in Fed.R.Civ.P. 26(b)(2)(C) into account for purposes of production of discovery in this matter. The parties have, in addition, discussed and/or will discuss the concepts of testing and sampling which contemplate that a party may request to test or sample any designated documents or electronically stored information or tangible things. See Fed. R. Civ. P. 34(a)(1). Testing and sampling can be important tools in managing discovery, particularly discovery of ESI, and the parties agree to use them as and when appropriate in this litigation to ensure the streamlined and efficient conduct of discovery. Information sufficient to demonstrate adequate quality controls may be shared upon mutual agreement by the parties and as appropriate and necessary, to facilitate efficient and effective discovery.

4. By February 2, 2016, the parties shall exchange in writing the information listed in items (a) through (e) below, as applicable. The parties agree and understand that their respective responses are based on their knowledge and understanding as of the date of the response and that further inquiry may reveal additional information pertinent to the efficient, effective collection of potentially relevant materials. Each party reserves its right to amend or supplement its responses to items IV(4)(a) through IV(4)(e):

a. A list of the producing party's most likely custodians of relevant electronic materials, including each person's job title and a brief description of such person's responsibilities (including dates of employment by the applicable producing party). The parties shall add or remove custodians as reasonably necessary;
b. A list of each electronic communications and/or ESI storage system(s) that may house any potentially relevant data for the producing party and a general description of each system, including the dates of service, scope, and organization in each system;
c. A general description, or at the responding party's option, a copy of a written rendition of the party's operative document retention policies pertaining to any electronic communications and or/ESI storage system(s) that may house any potentially relevant data;
d. Other pertinent information about the responding party's electronically created and/or stored documents and an explanation regarding whether those documents are subject to limited accessibility, that is, those created or used by electronic media no longer in use, maintained in redundant electronic storage media, or for which retrieval involves substantial cost and/or lengthy time periods or substantial dedication of labor;
e. Whether a responding party contends that that party has or may have any potentially responsive ESI that is inaccessible or only of limited accessibility and, hence, not producible by that party. If a responding party does so contend pursuant to subparagraph (d), as to such ESI the party shall set forth:
(i) The general nature of such information (e.g., correspondence, financial planning, budget, etc.);
(ii) The reason(s) why the information is considered inaccessible or on only limited accessibility;
(iii) Information sufficient to identify the type of backup and disaster recovery media used and the number of backup tapes involved, or if applicable, the identity and version of applicable legacy software or systems, and when such software or systems achieved legacy status by the party;
(iv) Proposed capture and retrieval process available (if any) for identification and recovery of the information deemed inaccessible (including cost estimates if readily available); and
(v) Whether that information is to be preserved.

5. If the requesting party intends to seek discovery of such wholly or partially inaccessible ESI, the parties shall promptly either (a) reach an agreement as to how they will proceed with retrieval and production, or (b) notify the Court that the parties have a dispute regarding arguably or allegedly wholly or partially inaccessible electronic data for resolution.


The parties agree that in responding to an initial Fed.R.Civ.P. 34 request, or earlier if appropriate, they will meet and confer about methods to search ESI in order to identify ESI that is subject to production in discovery and filter out ESI that is not subject to discovery. The parties will aim to establish search methodologies with the goal of limiting the scope of review for production, minimizing the need for motion practice, and facilitating production in accordance with the deadlines set by the Court or agreed upon by the parties.


1. The parties agree that attending to issues relating to form of production at the outset facilitates the efficient and cost effective conduct of discovery. The parties agree to produce documents in [√]PDF, [√]TIFF, [√] native, and [√] a combination thereof (check all that apply) file formats. If particular documents warrant a different format, the parties will cooperate to arrange for the mutually acceptable production of such documents. The parties agree not to degrade the searchability of documents as part of the document production process.

2. Appendix A sets forth technical specifications that the parties propose to govern the form of production of ESI in this litigation, absent other agreement by the parties within 21 days of the date a discovery request is propounded. (Requesting parties reserve the right to modify the technical specifications in their requests for production or depending on the selection of a platform for the hosting of data to maximize usability.) Among other things, the proposed technical specifications incorporate the directive of Fed.R.Civ.P. 34(b)(2)(E)(iii) and provide that a party need not produce ESI in more than one form, unless agreed to in limited circumstances (as contemplated in the technical specifications).

3. Deduplication of ESI is expected and the parties agree to meet and confer in good faith regarding the terms and conditions of deduplication; however, in any event, deduplication is subject to the parties' good faith agreement to provide the requesting party with information about other custodians who possessed any specific ESI that would be available but for the ...

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