B. Trent Webb (KS No. 15965), Robert Reckers (pro hac vice), Shook, Hardy & Bacon LLP., Bart. A. Starr (KS No. 20165), Aaron Hankel (pro hac vice) Ryan Dykal (pro hac vice), Shook, Hardy & Bacon LLP., Attorneys for Plaintiff
Terrence J. Campbell BARBER EMERSON, L.C., Lawrence J. Gotts Mark Koehn LATHAM & WATKINS LLP., David S. Benyacar, Daniel L. Reisner, David Soofian, Kaye Scholer LLP., Ryan Owens LATHAM & WATKINS LLP., Ron E. Shulman LATHAM & WATKINS LLP., Attorneys for Defendants
AGREED ORDER ESTABLISHING PROTOCOL FOR ESI AND PAPER DOCUMENTS
JAMES P. O’HARA United States Magistrate Judge
Pursuant to the Court’s Scheduling Order (Doc. No. 69), and this District’s Guidelines for Discovery of Electronically Stored Information (ESI), Plaintiff Sprint Communications Company L.P. (“Sprint”) and Defendants in the consolidated cases have met and conferred regarding ESI production and have agreed to the following protocols. The protocols are before the Court in the form of a proposed Order. The Court has reviewed the proposed Order and finds that the protocol set forth in the proposed Order is an effective and efficient method for discovery of ESI, including paper documents which will be electronically scanned. Accordingly, for good cause shown, IT IS HEREBY ORDERED as follows:
A. ESI: Electronically stored information, regardless of the media, including scans of hard copy (i.e., paper documents).
B. Consolidated Action: This term shall mean the consolidated action, Case No. 11-2684-JWL-JPO, pending in the United States District Court for the District of Kansas, which includes Sprint Communications Co., L.P. v. Comcast Cable Communications, LLC, Case No. 11-2684-JWL-JPO, Sprint Communications Co., L.P. v. Cable One, Inc., Case No. 11-2685-JWL-JPO and Sprint Communications Company L.P. v. Time Warner Cable Inc., Case No. 11-2686-JWL-JPO.
C. Potentially Discoverable ESI: Plaintiff’s and Defendants’ electronic “documents” containing or potentially containing information relating to facts at issue in the Consolidated Action, where the term “documents” is used as it is defined in Fed.R.Civ.P. 34(a).
D. 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 other than PDAs, smartphones, or cells phones. Legacy data (i.e., data that has been created or stored by the use of software and/or hardware that has been replaced), and data that require forensic analysis to recover are not Reasonably Accessible.
E. Search Terms: Search Terms are words or phrases that can be used to identify potentially relevant documents. For example, “ATM” and “VoIP” are potential Search Terms.
F. Searching Syntax: Searching Syntax refers to logical combinations of Search Terms that can be used to narrow the search for potentially relevant documents. For example, Sprint w/5 TWC, is a potential Searching Syntax.
II. GENERAL SCOPE
A. Potentially Discoverable ESI.
1. Unless otherwise specifically stated and agreed to the contrary, the parties agree that, pursuant to the Federal Rules of Civil Procedure, Local Rules and the Court’s Scheduling Order (Doc. No. 69), only Reasonably Accessible ESI will be reviewed and produced unless a party makes a specific request for other ESI. Nothing in this proposed Order establishes any agreement as to either the temporal or subject matter scope of discovery in this Consolidated Action.
2. 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, the parties will make a good faith effort to resolve such a dispute amongst themselves before any motion is filed with the Court.
3. Deleted Information. Absent a showing of good cause, no party need restore any deleted ESI. Where a requesting party shows good cause for restoring deleted ESI, the cost of this restoration will presumably fall on the requesting party.
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 categories of ESI identified in Schedule A attached hereto need not be preserved.
1. The parties have jointly agreed to 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. As part of the parties’ agreement, the parties may embark on a collaborative effort to identify appropriate Search Terms and Searching Syntax, scoped to key player custodians and date range filtering corresponding to the subject matter of this Consolidated Action. Nothing herein, however, obligates a producing party to use Search Terms and Searching Syntax to identify Potentially Discoverable ESI or responsive ESI.
2. To the extent any party identifies for its own production ESI documents that it believes render use of Search Terms and Searching Syntax appropriate, the parties agree to begin discussing and crafting potential Search Terms and Searching Syntax. The parties agree to identify such 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.
3. The parties further agree to engage in a cooperative electronic form of production sampling exercise, whereby each party has accepted and approved the production format sample.
4. 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 agree to a further series of meet and ...