United States District Court, D. Colorado
TUFFY SECURITY PRODUCTS, INC. Plaintiff,
BESTOP, INC., Defendant.
Ramon L. Pizarro Law Office of Ramon L. Pizarro ATTORNEY FOR PLAINTIFF.
HOWARD&HOWARD ATTORNEYS PLLC Jeffrey A. Sadowski, SHERIDAN ROSS P.C. ATTORNEYS FOR DEFENDANT
[PROPOSED] ORDER RELATING TO ELECTRONICALLY STORED INFORMATION (“ESI”)
NINA Y. WANG, UNITED STATES MAGISTRATE JUDGE.
The parties anticipate there will be some discovery of electronic information. Counsel for Plaintiff has advised the client of the need to preserve all potentially discoverable electronically stored information (“ESI”). Likewise, counsel for Defendant has advised its client of the need to preserve all potentially discoverable ESI. The parties further agree that they will adhere to the Sedona Principles regarding electronic discovery disputes.
The parties will agree on limitations to electronic discovery to ensure that electronic discovery is reasonable and proportionate. The parties agree to a limit of five document custodians per party for whom ESI will be preserved, and will negotiate in good faith to determine the identities of up to five document custodians for whom ESI will be preserved.
Pursuant to Fed.R.Civ.P. 26(b)(2)(B), the parties agree that data sources that are not reasonably accessible because of undue burden or cost need not be searched, reviewed, or produced. The parties agree that voicemail, instant messaging, social media, and automatically saved versions of documents are not reasonably accessible and to negotiate in good faith if any other sources are determined to not be reasonably accessible as the case progresses.
The parties agree that in responding to an initial Fed.R.Civ.P. 34 request, 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.
With regard to email, the parties agree:
• General ESI production requests under Federal Rules of Civil Procedure 34 and 45 shall not include email or other forms of electronic correspondence (collectively "email") unless specifically requested.
• To obtain email parties must propound specific email production requests. To the extent possible, email production requests shall only be propounded for specific issues, rather than general discovery of a product or business.
• Email production requests shall be phased to occur after the parties have exchanged F.R.C.P. 26(a)(1) initial disclosures and requests for basic documentation about the patents, the prior art, the accused instrumentalities, and the relevant finances. Nothing in the foregoing shall limit a party's ability to submit email production requests after other initial requests have been made, notwithstanding if responses to prior requests continue to be subject to production on a rolling basis.
• Email production requests shall identify the custodian, search terms, and time frame. The parties shall cooperate to identify the proper custodians, proper search terms and proper timeframe and requests may be amended pursuant to the parties' conference regarding these parameters.
• Each requesting party shall limit its initial email production requests to a total of five custodians per producing party for all such requests. The parties may jointly agree to modify this limit without the Court's leave and agree that this limit may be subject to change as discovery progresses. The Court shall consider contested requests for additional custodians, upon showing a distinct need based on the size, complexity, and issues of this specific case. Cost-shifting may be considered as part of any such request in limited circumstances.
• Each requesting party shall limit its initial email production requests to a total of seven (7) search terms per custodian per party. The parties may jointly agree to modify this limit without the Court's leave and agree that this limit may be subject to change as discovery progresses. The Court shall consider contested requests for additional search terms per custodian, upon showing a distinct need based on the size, complexity, and issues of this specific case. The Court encourages the parties to confer on a process to test the efficacy of the search terms. To the extent possible, the search terms shall be narrowly tailored to particular issues. Indiscriminate terms, such as the producing company's name or its product name, are inappropriate unless combined with narrowing search criteria that sufficiently reduce the risk of overproduction. A conjunctive combination of multiple words or phrases (e.g., "computer" and "system") narrows the search and shall count as a single search term. A disjunctive combination of multiple words or phrases (e.g., "computer" or "system") broadens the search, and thus each word or phrase shall count as a separate search term unless they are variants of the same word. Use of narrowing search criteria (e.g., "and, " "but not, " "w/x") is encouraged to limit the production and shall be considered when ...