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Basulto v. Exact Staff, Inc.

United States District Court, D. Colorado

March 2, 2016

JORGE BASULTO, Plaintiff,
v.
EXACT STAFF, INC ., and ELECTRONIC RECYCLERS, INC., Defendants.

ORDER ESTABLISHING PROTOCOL FOR ELECTRONIC DISCOVERY

Nina Y. Wang United States Magistrate Judge

This matter is before the court on Plaintiff’s Motion for Order to Establish Protocol for ESI Discovery [#45, filed on February 10, 2016]. This court issued a Minute Order, indicating that to the extent that Defendant Electronic Recyclers, Inc. had any objection to the proposed ESI Protocol [#45-6], such Response would be filed on or before February 18, 2016. [#47]. No Response was filed with the court. Accordingly, the Plaintiff’s Motion for Order to Establish Protocol for ESI Discovery [#45] is GRANTED IN PART and DENIED IN PART, as follows.

Consistent with this District’s Guidelines for Discovery of Electronically Stored Information (ESI), the Court enters the following Order regarding the preservation and production of ESI in this case. Accordingly, for good cause shown, IT IS HEREBY ORDERED as follows:

I. DEFINITIONS

a. ESI: Electronically stored information, regardless of the media, including scans of hard copy (i.e., paper documents).

b. Potentially Discoverable ESI: Plaintiff’s and Defendants’ electronic “documents” containing or potentially containing information relating to facts at issue in the Complaint, where the term “documents” is used as it is defined in Fed.R.Civ.P. 34(a).

c. Reasonably Accessible ESI: ESI available without undue burden or cost, including active or dynamic media such as information stored on drives and servers accessible by desktops, laptops, tablets, and other computer interfaces, except as provided below.

d. Search T e r ms: Search Terms are words or phrases that can be used to identify potentially relevant documents.

e. Searching Syntax: Searching Syntax refers to logical combinations of Search Terms that can be used to narrow the search for potentially relevant documents.

II. GENERAL SCOPE

a. Potentially Discoverable ESI.

i. Unless otherwise specifically stated and agreed to the contrary, pursuant to the Federal Rules of Civil Procedure, and the Court’s Scheduling Order, and consistent with the District’s Guidelines for Discovery of Electronically Stored Information (ESI), only Reasonably Accessible ESI will be reviewed and produced unless a party makes a specific request for other ESI.

ii. Should a dispute arise among the parties in determining and agreeing upon whether a particular population of ESI or entire ESI data source is inaccessible or needs to be produced aside from what is agreed to in this Stipulated Order, the parties will make a good faith effort to resolve such a dispute before any motion is filed with the Court, including meeting and conferring either in person or by telephone. Meeting and conferring through correspondence is insufficient to satisfy the Parties’ obligations under D.C.COLO.LCivR 7.1.

b. Preservation of Discoverable Information.

A party has a common law obligation to take reasonable and proportional steps to preserve discoverable information in the party’s possession, custody or control. Absent a showing of good cause by the requesting party, the following categories of ESI need not be preserved:

i. Deleted, slack, fragmented, or other data only accessible by forensics.

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

iii. On-line access data such as temporary internet files, history, cache, cookies, and the like.

iv. Data in metadata fields that are frequently updated automatically, such as last-opened dates.

v. Back-up data that are substantially duplicative of data that are more accessible elsewhere.

vi. Server, system or network logs.

vii. Data remaining from systems no longer in use that is unintelligible on the systems in use.

viii. Electronic data (e.g. email, calendars, contact data, and notes) sent to or from mobile devices (e.g., iPhone, iPad, Android, and Blackberry devices), provided that a copy of all such electronic data is routinely saved elsewhere (such as on a server, laptop, desktop computer, or “cloud” storage).

c. Guidelines.

i. The parties shall collect, process and review Potentially Discoverable ESI and produce responsive ESI in accordance with the principles set forth in the Sedona Conference’s 2008 Cooperation Proclamation, founded on principles of reasonableness and proportionality aimed at exhaustively but succinctly producing all responsive ESI to both parties. The parties shall conduct searches for the Search Terms and Search Syntax, scoped to key player custodians and date range filtering corresponding to the subject matter of this lawsuit. Such list is attached as Exhibit A.

ii. To the extent any party identifies for its own production ESI documents that it believes renders use of Search Terms and Searching Syntax appropriate, the parties s h a ll begin discussing and crafting potential additional Search Terms and Searching Syntax. The parties s h a ll identify such additional Search Terms and Searching Syntax to be used by both parties as part of their collection and processing of ESI, including paper that will be scanned, as set forth in these protocols.

iii. After reaching such agreement, if a party later decides other Search Terms and Searching Syntax should be crafted in order to identify additional Potentially Discoverable ESI and responsive ESI, the parties shall engage in a series of meet and confer communications concerning that request before filing a motion with the Court. These conferences must take place in person or by telephone.

iv. Nothing in this Order, including any provisions related to the use or non-use of Search Terms or Search Syntax, shall excuse a party from searching for and producing documents from locations (including electronic files) it ...


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