United States District Court, D. Kansas
AGREED ORDER FOR THE PRODUCTION OF HARDCOPY DOCUMENTS
AND ELECTRONICALLY STORED INFORMATION
James
P. O'Hara, U.S. Magistrate Judge
The
Parties hereby agree to the following protocol for production
of electronically stored information (“ESI”) and
paper (“hardcopy”) documents.[1] Subject to
protective orders in this Action, this protocol governs all
productions in this matter. This protocol has the objective
to facilitate the just, speedy and cost-efficient discovery
of ESI and hardcopy documents and to promote, whenever
possible, the early resolution of disputes, including any
disputes pertaining to scope or costs, regarding the
discovery of ESI without Court intervention. Nothing in this
protocol shall limit a Party's right to seek or object to
discovery as set out in applicable rules, to rely on any
protective order entered in this Action concerning protection
of confidential or otherwise sensitive information, or to
object to the authenticity or admissibility of any hardcopy
document or ESI produced in accordance with this protocol.
The mere production of ESI as part of a mass production shall
not itself constitute a waiver for any purpose.
A.GENERAL
AGREEMENTS
1.
Ongoing Cooperation Among the Parties
The
Parties commit to cooperate reasonably and in good faith
throughout the matter regarding the production of ESI and
hardcopy materials as discovery proceeds. The Parties
acknowledge that an attorney's zealous representation of
a client is not compromised by conducting discovery in a
reasonable and cooperative manner.
When
circumstances arise that are not contemplated by the terms of
this Order, or if uncertainty arises concerning the intended
application of its terms, a Producing Party should initiate
the meet and confer process prior to expending material
resources on a unilaterally conceived discovery protocol. A
Producing Party shall avoid production protocols that
unnecessarily diminish a requesting party's ability to
search, retrieve, classify, organize or use ESI.
2.
E-Discovery Liaisons
Each
Party will identify an E-discovery Liaison who will be
primarily responsible for meeting and conferring concerning
ESI. Each E-discovery Liaison will:
a. be knowledgeable about the Party's e-discovery
efforts;
b. be, or have reasonable access to those who are, familiar
with the Party's electronic systems and capabilities in
order to explain those systems and answer relevant questions;
and
c. be, or have reasonable access to those who are,
knowledgeable about the technical aspects of e-discovery,
including electronic document storage, organization, and
format issues, and relevant information retrieval technology,
including search methodology.
Each
Party will notify the other of any changes of its designated
E-discovery Liaison.
3.
Exchange of ESI-Related Information
By
December 15, 2019, Defendants shall provide Plaintiff in
writing the information listed in items (a) through (g)
below. The Parties agree and understand that Defendants'
disclosures are based on their knowledge and understanding as
of the date of the response, and Defendants agree to amend or
supplement the responses in a timely manner if they learn
that in some material respect their responses are incomplete
or incorrect. Additionally, nothing about Defendants'
disclosure restricts Plaintiff's ability or right to
request in writing additional information and/or production
on newly identified custodians or any other matter subject to
this Order and Defendants' ability or right to object to
same.
a.
Custodians:
A written list of the likely Custodians (including current
and former employees) of relevant information, including, for
individual Custodians, a brief description of each
person's title, responsibilities, years of service, and
the department in which that individual worked; for
departmental Custodians, a brief description of each
identified departmental Custodian; and for shared-resource
Custodians, a brief description of that resource. Additional,
reasonably available information sufficiently detailed to
enable the requesting Party to evaluate the Producing
Party's list of Custodians, including, but not limited
to, a Producing Party's organization chart(s) (or other
similar information if no such charts exist) sufficient to
show the company's structure, including departments and
personnel, by title/position or name, within such departments
for the period relevant to the claims and defenses. Plaintiff
may request additional Custodians or sources after such
initial disclosure and Defendants reserve their right to
object to such requests;
b.
Sources of Electronic Communications:
A written list of each electronic communication system
(including archival, proprietary and legacy systems) that is
reasonably likely to contain Discoverable Information and
that has been in place at all relevant times and a general
description of each such system, including the nature, scope,
character, organization and format employed in each system.
c.
Non-Custodial Sources of Information:
A list and general description of the key non-custodial
sources of information that would be reasonably expected to
contain discoverable information, whether the ESI in those
systems is already segregated such that an electronic search
is not necessary, and whether such systems or their structure
is anticipated to pose any technological challenges to
implementing a search protocol. For those sources identified,
the Party shall provide the following information (to the
extent that it is reasonably available):
1. Information Source Name;
2. Type of Source;
3. Software Platform;
4. Software Version;
5. Business Purpose;
6. System/Business Owners (primary users of database);
7. Whether Database is on premises or cloud-based;
8. Field List within the scope of permissible discovery,
including, but not limited to: Database field names, Database
field values and codes, Database input constraints, Database
Auto Filled Fields;
If the
Producing Party claims that a Non-Custodial Source(s) that it
reasonably believes would contain unique responsive
information is not reasonably accessible, it shall identify
such non-custodial source and will meet and confer to address
the appropriate information to provide in order to support
such claim. In addition, the Parties will meet and confer to
discuss Field Definitions (including field type, size and
use) within the scope of permissible discovery.
c. A
general description of and a copy of the operative document
retention policies, practices and procedures throughout the
relevant time period, pertaining to known data within the
scope of discovery;
d. The
name of the individual responsible for the Producing
Party's electronic document retention policies
(“the retention coordinator”);
e. A
description of unique, non-duplicative ESI within the scope
of discovery that the Party is aware of having been lost or
destroyed after legal hold obligations in this case have been
triggered, if any;
f. The
intended method or methods of collection of ESI from the
Custodians and locations discussed in this Order, including
whether such intended method or methods will (1) alter or
affect in any way the ESI, including its metadata, (2)
capture all ESI from a Custodian or resident at identified
locations, and (3) if it will not capture all ESI from a
Custodian or resident at identified locations, what ESI it
intends to collect and how it will determine the ESI to be
collected.
g. A
description of any ESI within the scope of discovery that the
Party contends is inaccessible or only of limited
accessibility and, hence, not producible by that Party
without undue burden and/or expense, including:
i. the reasons for the Party's contention regarding
accessibility; and
ii. the proposed capture and retrieval process available (if
any) for identification and/or recovery of the information
deemed inaccessible (including cost estimates if readily
available).
4.
Search of Discoverable Information for Production:
The
Parties must discuss the method or methods of search of ESI
as part of the meet-and-confer process pursuant to this
Order. The purpose of this requirement is to ensure an
appropriate degree of transparency with respect to
information relating to methods for the search of ESI for
purposes of identification and production. To the extent the
parties are unable to resolve any disagreements regarding
search methodologies through the meet-and-confer process, the
parties shall raise such issues with the Court.
To the
extent the Producing Party identifies, during its collection
or review, any Document that it knows to be responsive yet
which, for any reason, falls outside of the agreed upon
search methodology or is not captured by the search
procedure, the Producing Party must produce all such
responsive, non-privileged Documents.
5.
Proportionality
a.
Proportional Scope of Discovery. Consistent with the
proportionality standard set forth in Federal Rule of Civil
Procedure 26(b)(1), the Parties agree to cooperate in
identifying an appropriate scope of discovery, including the
sequence of discovery, relevant custodians, discoverable data
sources, the relevant time period, and the scope of requests
for production, including, but not limited to, the scope of
requests for emails.
b.
Non-Discoverable ESI. Consistent with the
proportionality standard, and absent a Party's specific
written notice for good cause, the following is a
non-comprehensive list of categories of ESI that are presumed
to not be within the scope of discovery. If the Producing
Party identifies categories of ESI that contain unique
responsive information that it believes are outside the scope
of discovery, it will identify such categories ...