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City of Las Cruces v. United States

United States District Court, D. New Mexico

January 21, 2018

CITY OF LAS CRUCES and DONA ANA COUNTY, Plaintiffs,
v.
UNITED STATES OF AMERICA, UNITED STATES DEPARTMENT OF DEFENSE, and NATIONAL GUARD BUREAU, Defendants.

          ORDER AND STIPULATION REGARDING DISCOVERY PROCEDURE

          HON. GREGORY J. FOURATT, UNITED STATES MAGISTRATE JUDGE

         WHEREAS, Rule 26(f) of the Federal Rules of Civil Procedure states that the Parties must develop a proposed discovery plan that states the Parties' views and proposals on, among other things, “any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced, ” Fed.R.Civ.P. 26(f)(3)(C);

         WHEREAS, the Parties mutually seek to reduce the time, expense and other burdens of discovery of certain electronically stored information (“ESI”) and privileged materials, as described further below, and to better define the scope of their obligations with respect to preserving such information and materials;

         WHEREAS, the Parties therefore are entering into this Stipulation with the request that the Court enter it as an Order;

         NOW THEREFORE, it is hereby STIPULATED and ORDERED:

         I. DEFINITIONS

         1. The terms used in this stipulation and order that are also used in the Federal Rules of Civil Procedure have the same meaning that they have under the Federal Rules, unless otherwise provided in this stipulation and order. Whenever the terms set forth below are used in this stipulation and order, the following definitions apply:

(a) “Draft, ” when used to describe either an electronic or hard copy document, means “a preliminary version of a document that has been shared by the author with another person (by email, print, or otherwise) or that the author no longer intends to finalize or to share with another person, ”
(b) “Duplicate, ” when used to describe either an electronic or hard copy document, means that the document does not show any facial differences, such as the inclusion of highlights, underlining, marginalia, total pages, attachments, markings, revisions, or the inclusion of tracked changes. Differences in system metadata fields, such as date created or modified, that do not affect the face of the document, are not relevant to determining whether the document is a duplicate.
(c) “Parties” means the parties to this litigation, including their employees and authorized agents.
(d) “Policy” means a regular practice at an entity that managers know about and expect to be carried out.

         II. PRESERVATION

         2. ESI That Is Not Reasonably Accessible.

         The following categories of ESI listed below are not reasonably accessible in this litigation:

(a) Data stored in a backup system for the purpose of system recovery or information restoration, including but not limited to, disaster recovery backup tapes, continuity of operations systems, and data or system mirrors or shadows, if such data are routinely deleted or written over in accordance with an established routine system maintenance practice;
(b) Voicemail messages;
(c) Instant messages, such as messages sent on AOL Instant Messenger or Microsoft Communicator;
(d) Text messages, such as cell phone to cell phone SMS messages;
(e) Electronic mail sent to or from a personal digital assistant (“PDA”), smartphone (e.g., BlackBerry, iPhone), or tablet (e.g., iPad) provided that a copy of such email is routinely saved elsewhere;
(f) Other electronic data stored on a PDA, smartphone, or tablet, such as calendar or contact data or notes, provided that a copy of such information is routinely saved elsewhere;
(g) Logs of calls made from cellular phones;
(h) Deleted computer files, whether fragmented or whole (nothing in this order authorizes the intentional deletion of ESI after the duty arose to preserve such ESI);
(i) Data stored in random access memory (“RAM”), cache memory, or in temporary or cache files, including internet history, web browser cache and cookie files, wherever located;
(j) Data stored on photocopiers, scanners, and fax machines;
(k) Server, system, or network logs;
(1) Electronic data temporarily stored by scientific equipment or attached devices, provided that the data that is ordinarily preserved as part of a laboratory report is, in fact, preserved in its ordinary location and form; and
(m) Data stored on legacy systems that were no longer in use five years before the complaint was filed.

         3. Nothing in this Stipulation and Order prevents any Party from asserting, in accordance with the Federal Rules of Civil Procedure, that other categories of ESI are not reasonably accessible.

         4. The Parties need not preserve, for this litigation, the categories of ESI listed in paragraph 2 unless, on the date that this stipulation and order is entered by the Court, either Party has a Policy that results in the routine preservation of such ESI, or the Custodian has independent reason to believe the data is highly relevant. In either case such Party shall continue to preserve such ESI in accordance with its Policy.

         5. No Discovery of Material Not Required To Be Preserved.

         The Parties shall not seek discovery of items that need not be preserved pursuant to paragraphs 2-4 above. If any discovery request is susceptible of a construction that calls for the production of items that need not be preserved pursuant to paragraphs 2-4, such items need not be searched for, produced, or identified on a privilege log pursuant to Fed.R.Civ.P. 26(b)(5).

         6. Use of Documents During Litigation.

         Notwithstanding any other provision of this Order, the Parties may take any of the following actions with respect to documents and ESI without breaching their duty to preserve documents and ESI:

(a) The Parties may continue to work, in the ordinary course of business, on documents that do not meet the definition of Draft in paragraph 1. However, the Parties shall preserve Draft documents for discovery.
(b) The Parties may move unfiled documents or ESI into files or folders that adhere to an organizational scheme that was created before the complaint was filed in this matter. Nothing in this paragraph prevents the Parties from implementing an organizational scheme that applies only to documents or ESI created after the complaint was filed in this matter.
(c) The Parties may delete, overwrite, or wipe ESI from devices that are being replaced, upgraded, reimaged, disposed of, or returned at the end of lease, provided that the potentially relevant ESI is first copied to a new location in a manner that preserves the data, including metadata, that must be produced pursuant to Section VI of this Order.
(d) The Parties may move data from one device to another, or from one location to another, provided that a copy of the ESI remains accessible in the first location or the new copy is created in a manner that preserves the data, including metadata, that must be produced pursuant to Section VI of this Order.
(e) The Parties may load loose ESI into a enterprise content management system, provided that: (1) the enterprise content management system captures all of the metadata fields that must be produced under this order and does not convert the format of the ESI in a way that makes it significantly less accessible; or (2) the Parties maintain a copy of the ESI in its native format and make their production from this native file collection.
(f) The Parties may upgrade, patch, reprogram, or customize software that stores relevant data, even if such actions alter the way data is maintained, stored, or viewed.
(g) The Parties may take any of the following actions with respect to data in a database provided that it is part of the routine use of the database: input additional data; access data; update the software running the ...

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