Mitchell v. Depuy Orthopaedics, Inc.

          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 ...