Guidelines (D. Kan.) for topics to discuss at 26(f) meet and confer

During the [26(f)] conference, the parties should confer regarding the following matters:

• [ESI] in general. Counsel should attempt to agree on steps the parties will take to segregate and preserve [ESI] in order to avoid accusations of spoliation.
• E-mail information. Counsel should attempt to agree on the scope of e-mail discovery and e-mail search protocol.
• Deleted information. Counsel should attempt to agree on whether responsive deleted information still exists, the extent to which restoration of deleted information is needed and who will bear the costs of restoration.
• Embedded data and metadata. Embedded data typically refers to draft language, editorial comments, and other deleted matter retained by computer programs. Metadata typically refers to information describing the history, tracking, or management of an electronic file. The parties should discuss at the [conference] whether embedded data and metadata exist, whether it will be requested or should be produced, and how to handle determinations regarding privilege or protection of trial preparation materials.
• Back-up and archival data. Counsel should attempt to agree on whether responsive back-up and archival data exists, the extent to which back-up and archival data is needed, and who will bear the cost of obtaining such data.
• Format and media. Counsel should attempt to agree on the format and media to be used in the production of [ESI].
• Reasonably accessible information and costs. The volume of, and ability to search, [ESI] means that most parties discovery needs will be satisfied from reasonably accessible sources. Counsel should attempt to determine if any responsive [ESI] is not reasonably accessible, i.e., information that is only accessible by incurring undue burdens or costs. If the responding party is not searching or does not plan to search sourced containing potentially responsive information, it should identify the category or type of such information. If the requesting party intends to seek discovery of [ESI] from sources identified as not reasonably accessible, the parties should discuss:
• The burdens and costs of accessing and retrieving the information;
• The needs that may establish good cause for requiring production of all or part of the information, even if the information sought is not reasonably accessible; and
• Conditions on obtaining and producing this information such as scope, time and allocation of cost.
• Privileged or trial preparation materials. Counsel should attempt to reach an agreement regarding what will happen in the event privileged or trial preparation materials are inadvertently disclosed. If the disclosing party inadvertently produces privileged or trial preparation materials, it must notify the requesting party of such disclosure. After the requesting party is notified, it must return, sequester, or destroy all information and copies and may not use or disclose this information until the claim of privilege or protection as trial preparation materials is resolved.
• The parties may agree to provide a “quick peek,” whereby the responding party provides certain requested materials for initial examination w/o waiving any privilege or protection.
• The parties may also establish a clawback agreement, whereby materials that are disclosed w/o intent to waive privilege or protection are not waived and are returned to the responding party, so long as the responding party identifies the materials mistakenly produced
• Other voluntary agreements should be considered as appropriate. The parties should be aware that there is an issue of whether such agreements bind third parties who are not parties to the agreements.
• Duty to meet and confer when requesting [ESI] from non-parties (Fed. R. Civ. P. 45). Parties issuing requests for electronically stored information from non-parties should attempt to informally meet and confer with the non-party (or counsel, if represented). During this meeting, counsel should discuss the same issues with regard to requests for [ESI] that they would with opposing counsel as set forth ..above.

U.S. Dist. Cts. (Kan), Guidelines for Discovery of Electronically Stored Information. [pdf]

Case Summary: Benton v. Dlorah, Inc., 2007 WL 2225946 (D. Kan. Aug. 1, 2007); Court denies motion to compel production of hard drive

In this employment discrimination case, Magistrate Judge Gerald Rushfelt denied defendant’s request to compel the plaintiff to “produce the hard drive of her personal computer for inspection and copying.” In response to defendants’ discovery requests, some of which sought correspondence between plaintiff and defendant National American University or her students at the university, plaintiff produced one e-mail. After defendant informed plaintiff that it believed her responses to the discovery requests were deficient, and after agreeing to supplement those responses, Ms. Benton declared that all e-mails from her students had been deleted, and therefore could not produced. She also resisted producing her hard drive, as requested by defendants.

Defendants argued that Ms. Benton failed to “produce[] any e-mail communications that took place after February 2007,” and that they believe she had been deleting those emails relating to her employment since that date. Defendants contended that because Ms. Benton had admitted to deleting some emails, and because she had only produced one e-mail dated after February 2007, she must have destroyed other relevant documents.

The court disagreed. Defendants were speculating as to the whether plaintiff complied with their discovery requests, and have not met their burden to support their contentions of spoliation. The court refused to assume the plaintiff’s failure to comply. Therefore, the court denied the motion, and any calls for sanctions, without prejudice to any future motion should further discovery show that plaintiff did, in fact, fail to produce responsive documents or had spoliated relevant evidence.

Benton v. Dlorah, Inc., 2007 WL 2225946 (D. Kan. Aug. 1, 2007)

K&L Gates has the full text of the opinion here, as well as their own summary here.

Case Summary: Kraft Foods N. Am.; Discovery request for documents over a 7 year period not overly broad

Court ruled that a discovery request seeking documents from January 1, 1999 to [April 7, 2006] did not represent an overly broad temporal scope. Although the “last discriminatory act” for the purposes of the action at bar would have occurred in April 2004, information from the two-years and three-months prior to the April 2002 liability period may be relevant to demonstrate the pattern and practice of discriminatory conduct alleged by Plaintiffs. Moreover, defendants provided no evidence that production of documents for this twenty-seven month period would impose any burden on defendants.

Court ruled “not overly broad” in departmental or organizational scope discovery requests seeking documents relating to “sales representatives” and “region managers” in the Kraft Sales Organization over the objection of the responding party. Responding party had argued that because no plaintiffs had ever held the position of regional manager, individuals in those positions were not similarly situated to Plaintiffs, making the documents irrelevant to the matter at hand. The court disagreed, finding that the requests were not overly broad on their face; that defendant’s lack of assertion to demonstrate that discovery would impose a burden; and that although the title of “region manager” no longer exists, responding party should produce documents of the position regardless of its new title.

Court ruled discovery requests seeking documents for the “Kansas City Region” were not overly broad in geographic scope, because the motives behind employment decisions made by managers at the regional level were relevant to the matter at hand. Because the some of the wrongdoing was alleged to have occurred at a regional level within defendant’s organizational structure, the court found defining the geographic scope of the requests as the Kansas City region is reasonable. Johnson v. Kraft Foods N. Am., Inc., 238 F.R.D. 648 (D. Kan 2006).

Case Summary: Ponca Tribe Indians; Discovery Request for data in a proprietary format denied

In a case concerning numerous allegations concerning the operation of a carbon black production plant, the court determined that the discovery request of all data maintained by an application named the “Data Historian” imposed an undue burden on the producing party, and was overly broad. Producing party had established its right to object by demonstrating that the expense of providing the information sought outweighed any benefit it might provide requesting party, while the requesting party failed to put forward a sufficient argument their need for the information within the data historian outweighed the burden of production.

The data historian, a proprietary software package not licensed to the requesting party, recorded data from 719 data points in one minute increments. Requesting party had refused producing party’s suggestion the requesting party could, using a key provided by producing party, identify specific data points to review, thereby “greatly reducing the volume of information sought.” Likewise, the requesting party refused to narrow their search by identifying relevant time and date periods, as suggested by the producing party. Requesting party argued that using these narrowing techniques wasn’t feasible, but they “offered no evidence demonstrating the basis for this conclusion.” Therefore, requesting party’s request to image or download the data base from the data historian was denied. However, to the extent that the requesting party express a willingness to purchase the necessary software and pay for the necessary programming, and post a bond suggested by producing party, the court will revisit the issue should the parties still be unable to agree on their own. The Ponca Tribe of Indians of Oklahoma v. Continental Carbon Co., 2006 WL 2927878 (W.D. Okla. Oct. 11, 2006).

Guideline (D. Kan): Form of Production

Parties and counsel are reminded that, under Fed. R. Civ. P. 34, if the requesting party has not designated a form of production in its request, or if the responding party objects to the designated form, then the responding party must state in its written response the form it intends to use for producing electronically stored information. U.S. Dist. Cts. (Kan), Guidelines for Discovery of Electronically Stored Information.

Case Blurb: Williams; Production of Metadata

An order to produce electronic spreadsheets as kept in the ordinary course of business requires production with metadata intact and spreadsheet cells to remain unlocked. Williams v. Sprint, 230 F.R.D. 640 (D.Kan. 2005)

Spreadsheet metadata is not irrelevant and must be produced unless its production is timely objected to. Id.

The court did allow for the removal of social security numbers and privileged impact analyses from the spreadsheets. Id.

Case Blurb: Crandall; source of court’s power to require preservation of evidence

[The court’s] authority [to require the preservation of evidence] emanates from the inherent powers of the federal courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases. Crandall v. City and County of Denver Colorado, 2006 WL 2683754 (D. Colo. 2006) (citing Jordan F. Miller Corp. v. Mid-Continent Aircraft Svc., Inc., 139 F.3d 912 (10th Cir. 1998)).