eDiscovery Daily Blog

Court Enters Parties’ Order for Discovery of ESI: eDiscovery Case Law

It’s a rare, if not unheard of, case law post that discusses an agreement between parties, not a dispute!  Just in time for the holidays!  Actually, early last month, but still…  ;o)

In Shotwell, et al. v. Zillow Group Inc., et al., No. C17-1387-JCC (W.D. Wash. Nov. 7, 2019), Washington District Judge John C. Coughenour entered an order regarding the discovery of electronically stored information (“ESI”), pursuant to the parties’ stipulation and proposed order.

The order included the following sections:

  • General Principles, which notes, along with proportionality guidelines per Fed. R. Civ. P. 26(b)(1), that “An attorney’s zealous representation of a client is not compromised by conducting discovery in a cooperative manner.”
  • ESI Disclosures, which states that the parties will disclose within thirty days after the Fed. R. Civ. P. 26(f) conference (or later if agreed) custodians, non-custodial data sources, third party data sources and inaccessible data.
  • Preservation of ESI, which notes guidelines for the parties regarding preservation and what they don’t have to preserve (absent a showing of good cause by the requesting party, that is).
  • Privilege, Guidelines for privilege logs and handling of inadvertent disclosures of privileged documents.
  • ESI Discovery Procedures, includes definitions and specifications for image load file formats, production of hard copy documents and production of ESI (including things like handling of exceptions, production of metadata, handling of duplicates, handling of parent-child relationships, format of Bates numbers and handling of third-party subpoenas). The parties agreed to produce the ESI in single-page Group IV TIFF image format using at least 300 DPI print setting, except for certain files (Excel files, spreadsheet files, .CSV files, source code, audio, and video) which would be produced natively with a placeholder image.  There was a table of metadata to be produced associated with the discovery specifications, but it was not included in the order.
  • Miscellaneous, to cover things like conflict between the provisions of the agreement and the Stipulated Protective Order (the Protective Order will take precedent) and reiteration of protection of privilege.

It’s nice to cover an agreement between parties for a change and this discovery agreement is a good example of parties cooperating effectively on a plan for discovery.

So, what do you think?  Do you see any issues with this agreement?  I predict somebody will have at least one!  ;o)  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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