| UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
UNITED STATES OF AMERICA,
STATE OF WISCONSIN, STATE OF ILLINOIS,
and STATE OF MICHIGAN,
DEAN FOODS COMPANY,
|| Case No. 10-CV-59
The above captioned matter was filed with the court on January 22, 2010, and has been assigned to this branch of the court for further proceedings. In order to facilitate disposition of the case,
IT IS ORDERED that, pursuant to Fed. R. Civ. P. 26(f), counsel for the parties shall confer within 21 days of the date of this order and shall, on or before Friday, May 21, 2010, file with the court a single joint written report, signed by counsel of record for each named party, that:
- addresses the potential for prompt resolution or settlement of the case, including referral to the assigned magistrate judge, or other third-party neutral mutually agreed upon by the parties, for one or more mediation/settlement conferences, both before as well as after completion of discovery;
- addresses each of the four subparts in Fed. R. Civ. P. 26(f) including whether, and to the extent the parties have met their respective obligations with respect to initial disclosures required under Fed. R. Civ. P. 26, as well as mandatory discovery addressed in Civil L. R. 26.
The parties shall also include a separate proposed scheduling order for the court’s signature that, pursuant to Fed. R. Civ. P. 16 and Civil L. R. 16.1, establishes firm calendar cutoff dates for: (1) naming additional parties or amendment of the pleadings without the necessity of seeking formal leave of the court to do so; (2) naming expert witnesses in accordance with the requirements of Fed. R. Civ. P. 26(a)(2) and Civil L. R. 26.1; (3) completion of all discovery; and (4) filing dispositive motions. The proposed scheduling order shall also be forwarded in either WordPerfect or Word format to the court’s proposed order email address: email@example.com.
To avoid the unnecessary expenditure of resources associated with dispositive motions ultimately found lacking in merit owing to disputed issues of material fact, the court contemplates that counsel for the parties will confer well in advance of the agreed upon cutoff date for filing such motions with the goal of preparing and filing a single agreed statement of material facts for the benefit of both the court and the parties in briefing and adjudicating such motions. In the event the parties are unable to reach agreement with respect to all material facts, they remain free to submit separate additional proposed findings of fact consistent with the requirements of Civil L.R. 56.1 or 56.2.
Civil L.R. 7(j)(2), directs parties to file and serve a copy of any unreported opinion, decision, order, judgment or other written disposition to which they cite in their filings. The court directs that parties should only comply with this rule if either:
- any of the parties to the litigation are pro se; or 2) such unreported opinion, decision, order, judgment or other written deposition is unavailable on Westlaw or Lexis. If an electronic version of the cited document is available on Westlaw or Lexis, and if no party to the present action is pro se, the parties should disregard Civil L.R. 7(j)(2) and should not file copies of unreported opinions, decisions, orders, judgments, or other dispositions to which they cite in their filings.
Counsel and the parties are directed to include in the proposed scheduling order language that the court will not grant more than one amendment of the scheduling order to be filed in compliance with this order, and then only if good cause is shown upon motion or stipulation of the parties filed with the clerk of the court not less than 60 days prior to the expiration of any cutoff date sought to be modified.
If, following summary judgment, disputed issues of fact remain and the case is not otherwise resolved through settlement, the court will, at that juncture, schedule the matter for a final pretrial conference and trial.
In the event counsel for the parties are unable to agree upon calendar cutoff dates to be included in the scheduling order, are unable to resolve disputes pertaining to the discovery of electronically stored information, or for any other reason believe that a conference with the court would be beneficial, counsel should promptly notify the court and a conference will be scheduled.
This branch of the court has elected to participate in the Pilot Program initiated by the Seventh Circuit Electronic Discovery Committee. Therefore, parties and counsel associated with civil cases pending before this branch are directed to familiarize themselves with, and comport their conduct consistent with the committee's Principles Relating to the Discovery of Electronically Stored Information. For more information about the Pilot Program please see the web site of The Seventh Circuit Bar Association, www.7thcircuitbar.org. If any party believes that good cause exists as to why a particular case should be exempted, in whole or in part, from the Principles Relating to the Discovery of Electronically Stored Information, such party may address such concern directly with the court.
This court’s participation in the Pilot Program is directed toward facilitating more focused and meaningful electronic discovery insuring the most cost effective utilization of limited resources in the development of the facts supporting the parties’ claims and defenses while at the same time avoiding the necessity of counsel turning to the court for resolution of discovery related matters that are best left for resolution between the parties without the necessity of court intervention.
Section 1.01 Purpose
The purpose of the Principles is to assist courts in the administration of Federal Rule of Civil Procedure 1, to secure the just, speedy, and inexpensive determination of every civil case, and to promote, whenever possible, the early resolution of disputes regarding the discovery of electronically stored information ("ESI") without court intervention. Understanding of the feasibility, reasonableness, costs, and benefits of various aspects of electronic discovery will inevitably evolve as judges, attorneys and parties to litigation gain more experience with ESI and as technology advances.
Section 1.02 Cooperation
An attorney's zealous representation of a client is not compromised by conducting discovery in a cooperative manner. The failure of counsel or the parties to litigation to cooperate in facilitating and reasonably limiting discovery requests and responses raises litigation costs and contributes to the risk of sanctions.
Section 1.03 Discovery Proportionality
The proportionality standard set forth in Fed. R. Civ. P. 26(b)(2)(C) should be applied in each case when formulating a discovery plan. To further the application of the proportionality standard in discovery, requests for production of ESI and related responses should be reasonably targeted, clear, and as specific as practicable.
Early Case Assessment Provisions
Section 2.01 Duty to Meet and Confer on Discovery and to Identify Disputes for Early Resolution
- Prior to submission of a proposed scheduling order, counsel shall meet and discuss the application of the discovery process set forth in the Federal Rules of Civil Procedure and the Principles to their specific case. Among the issues to be considered for discussion are:
- the identification of relevant and discoverable ESI;
- the scope of discoverable ESI to be preserved by the parties;
- the formats for preservation and production of ESI;
- the potential for conducting discovery in phases or stages as a method for reducing costs and burden; and
- the procedures for handling inadvertent production of privileged information and other privilege waiver issues under Rule 502 of the Federal Rules of Evidence.
- Disputes regarding ESI that counsel for the parties are unable to resolve shall be presented to the court as soon as possible.
- Disputes regarding ESI will be resolved more efficiently if, before meeting with opposing counsel, the attorneys for each party review and understand how their client's data is stored and retrieved in order to determine what issues must be addressed during the meet and confer discussions.
- If the court determines that any counsel or party in a case has failed to cooperate and participate in good faith in the meet and confer process or is impeding the purpose of the Principles, the court may require additional discussions prior to the commencement of discovery, and may impose sanctions, if appropriate.
Section 2.02 E-Discovery Liaison(s)
In most cases, the meet and confer process will be aided by participation of an e-discovery liaison(s) as defined in the Principle. In the event of a dispute concerning the preservation or production of ESI, each party shall designate an individual(s) to act as e-discovery liaison(s) for purposes of meeting, conferring, and attending court hearings on the subject. Regardless of whether the e-discovery liaison(s) is an attorney (in-house or outside counsel), a third party consultant, or an employee of the party, the e-discovery liaison(s) must:
- be prepared to participate in e-discovery dispute resolution;
- be knowledgeable about the party's e-discovery efforts;
- 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
- 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.
Section 2.03 (Preservation Requests and Orders)
- Appropriate preservation requests and preservation orders further the goals of the Principles. Vague and overly broad preservation requests do not further the goals of the Principles and are therefore disfavored. Vague and overly broad preservation orders should not be sought or entered. The information sought to be preserved through the use of a preservation letter request or order should be reasonable in scope and mindful of the factors set forth in Rule 26(b)(2)(C).
- To the extent counsel or a party requests preservation of ESI through the use of a preservation letter, such requests should attempt to ensure the preservation of relevant and discoverable information and to facilitate cooperation between requesting and receiving counsel and parties by transmitting specific and useful information. Examples of such specific and useful information include, but are not limited to:
- names of the parties;
- factual background of the potential legal claim(s) and identification of potential cause(s) of action;
- names of potential witnesses and other people reasonably anticipated to have relevant evidence;
- relevant time period; and
- other information that may assist the responding party in assessing what information to preserve.
- If the recipient of a preservation request chooses to respond, that response should provide the requesting counsel or party with useful information regarding the preservation efforts undertaken by the responding party. Examples of such useful and specific information include, but are not limited to, information that:
- identifies what information the responding party is willing to preserve and the steps being taken in response to the preservation letter;
- identifies any disagreement(s) with the request to preserve; and
- identifies any further preservation issues that were not raised.
- Nothing in the Principles shall be construed as requiring the sending of a preservation request or requiring the sending of a response to such a request.
Section 2.04 Scope of Preservation
- Every party to litigation and its counsel are responsible for taking reasonable and proportionate steps to preserve relevant and discoverable ESI within its possession, custody or control. Determining which steps are reasonable and proportionate in particular litigation is a fact specific inquiry that will vary from case to case. The parties and counsel should address preservation issues at the outset of a case, and should continue to address them as the case progresses and their understanding of the issues and the facts improves.
- Discovery concerning the preservation and collection efforts of another party may be appropriate but, if used unadvisedly, can also contribute to the unnecessary expense and delay and may inappropriately implicate work product and attorney-client privileged matter. Accordingly, prior to initiating such discovery a party shall confer with the party from whom the information is sought concerning: (I) the specific need for such discovery, including its relevance to issues likely to arise in the litigation; and (ii) the suitability of alternative means for obtaining the information. Nothing herein exempts deponents on merits issues from answering questions concerning the preservation and collection of their documents, ESI, and tangible things.
- The parties and counsel should come to the meet and confer conference prepared to discuss the claims and defenses in the case including specific issues, time frame, potential damages, and targeted discovery that each anticipates requesting. In addition, the parties and counsel should be prepared to discuss reasonably foreseeable preservation issues that relate directly to the information that the other party is seeking. The parties and counsel need not raise every conceivable issue that may arise concerning its preservation efforts; however, the identification of any such preservation issues should be specific.
- The following categories of ESI generally are not discoverable in most cases, and if any party intends to request the preservation or production of these categories, then that intention should be discussed at the meet and confer or as soon thereafter as practicable:
- "deleted," "slack," "fragmented," or "unallocated" data on hard drives;
- random access memory (RAM) or other ephemeral data;
- on-line access data such as temporary internet files, history, cache, cookies, etc.;
- data in metadata fields that are frequently updated automatically, such as last-opened dates;
- backup data that is substantially duplicative of data that is more accessible elsewhere; and
- other forms of ESI whose preservation requires extraordinary affirmative measures that are not utilized in the ordinary course of business.
- If there is a dispute concerning the scope of a party’s preservation efforts, the parties or their counsel must meet and confer and fully explain their reasons for believing that additional efforts are, or are not, reasonable and proportionate, pursuant to Rule 26(b)(2)(C). If the parties are unable to resolve a preservation issue, then the issue should be raised promptly with the court.
Section 2.05 Identification of Electronically Stored Information
- At the Rule 26(f) conference, or as soon thereafter as possible, counsel or the parties shall discuss potential methodologies for identifying ESI for production.
- Topics for discussion may include, but are not limited to, any plans to:
- eliminate duplicative ESI and whether such elimination will occur only within each particular custodian’s data set or whether it will occur across all custodians;
- filter data based on file type, date ranges, sender, receiver, custodian, search terms, or other similar parameters; and
- use keyword searching, mathematical or thesaurus-based topic or concept clustering, or other advanced culling technologies.
Section 2.06 Production Format
- At the Rule 26(f) conference, counsel or the parties should make a good faith effort to agree on the format(s) for production of ESI (whether native or some other reasonably usable form). If counsel or the parties are unable to resolve a production format issue, then the issue should be raised promptly with the court.
- ESI stored in a database or a database management system often can be produced by querying the database for discoverable information, resulting in a report or a reasonably usable and exportable electronic file for review by the requesting counsel or party.
- ESI and other tangible or hard copy documents that are not text-searchable need not be made text-searchable.
- Generally, the requesting party is responsible for the incremental cost of creating its copy of requested information. Counsel or the parties are encouraged to discuss cost sharing for optical character recognition (OCR) or other upgrades of paper documents or non-text-searchable electronic images that may be contemplated by each party.
Because discovery of ESI is being sought more frequently in civil litigation and the production and review of ESI can involve greater expense than discovery of paper documents, it is in the interest of justice that all judges, counsel and parties to litigation become familiar with the fundamentals of discovery of ESI. It is expected by the judges adopting the Principles that all counsel will have done the following in connection with each litigation matter in which they file an appearance:
- Familiarize themselves with the electronic discovery provisions of Federal Rules of Civil Procedure, including Rules 26, 33, 34, 37, and 45, as well as any applicable State Rules of Procedure;
- Familiarize themselves with the Advisory Committee Report on the 2006 Amendments to the Federal Rules of Civil Procedure, available at www.uscourts.gov/rules/EDiscovery_w_Notes.pdf; and
- Familiarize themselves with the Principles.
Judges, attorneys and parties to litigation should also consult The Sedona Conference® publications relating to electronic discovery,1 additional materials available on web sites of the court, and of other organizations2 providing educational information regarding the discovery of ESI.3
Dated at Milwaukee, Wisconsin, this 14th day of April, 2010.
||BY THE COURT:
U.S. District Judge
2. E.g., http://www.7thcircuitbar.org, www.fjc.gov (under Educational Programs and Materials)
3. E.g., http://www.du.edu/legalinstitute