York v. Northrop Grumman Guidance & Elecs. Co.
York v. Northrop Grumman Guidance & Elecs. Co.
2022 WL 19263350 (W.D. Mo. 2022)
April 8, 2022

Phillips, Beth,  United States District Judge

Attorney-Client Privilege
FRE 502(d)
Protective Order
Privilege Log
Proportionality
Failure to Preserve
Form of Production
Redaction
Cooperation of counsel
Attorney Work-Product
ESI Protocol
Waiver
Scope of Preservation
Metadata
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Summary
The parties agreed to an ESI Protocol to supplement the Federal Rules of Civil Procedure, the Court's Local Rules, Standing Orders, and any other applicable orders and rules. The Protocol outlined the scope of discovery of ESI, cooperation and proportionality, search methods, production formats, delivery of document productions, processing of third-party documents, rolling productions, documents protected from discovery, and other provisions. Additionally, the parties agreed to furnish privilege logs and destroy all documents, items, or data received within thirty days of settlement or final adjudication.
Don YORK, Beverly York, Jacob Stradling, Alisha York-Stradling, Jack Harvey, and Judy Harvey, individually and on behalf of all others similarly situated, Plaintiffs,
v.
NORTHROP GRUMMAN GUIDANCE AND ELECTRONICS COMPANY, INC., Northrop Grumman Corporation, and Northrop Grumman Mission Systems, Defendants
Case No. 6:21-cv-03251-BP
United States District Court, W.D. Missouri, Southern Division
Signed April 08, 2022

Counsel

Brandon Wise, Paul A. Lesko, Peiffer Rosca Wolf Abdullah Carr & Kane, St. Louis, MO, for Plaintiffs.
Abbey Hudson, Pro Hac Vice, Patrick W. Dennis, Pro Hac Vice, Virginia Larimore Smith, Pro Hac Vice, Gibson, Dunn & Crutcher LLP, Los Angeles, CA, Christopher Chorba, Pro Hac Vice, Los Angeles, CA, Joseph D. Edmonds, Pro Hac Vice, Irvine, CA, Katie Kimberly Henderson, Pro Hac Vice, Gibson, Dunn & Crutcher LLP, Irvine, CA, Randy J. Soriano, Peter Bay, Erin L. Brooks, Bryan Cave Leighton Paisner LLP, St. Louis, MO, Robert M. Thompson, Bryan Cave, LLP, Kansas City, MO, for Defendants.
Phillips, Beth, United States District Judge

ORDER GRANTING JOINT MOTION FOR ENTRY OF ESI PROTOCOL

*1 For good cause, and pursuant to Rule 34 of the Federal Rules of Civil Procedure, the parties' Joint Motion for Entry of an ESI Protocol, (Doc. 36), is GRANTED and the Court ORDERS as follows:
I. SCOPE
A. This Protocol will govern discovery of electronically stored information (“ESI”) in this Action as a supplement to the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”), this Court's Local Rules, this Court's Standing Orders, and any other applicable orders and rules. Unless otherwise indicated expressly or by context, the terms “document” and “documents” refer to ESI.
B. Nothing in this Protocol is intended to alter or affect any party's rights or obligations under any order by the assigned District Judge, but shall be construed instead, wherever possible, as consistent with any order by the assigned District Judge.
C. Nothing in this Protocol establishes any agreement regarding the subject matter or scope of discovery in this Action, or the relevance, authenticity, or admissibility of any documents.
D. Nothing in this Protocol shall be interpreted to require production or disclosure of irrelevant information or relevant information that is not proportional to the needs of the case or is protected by the attorney-client privilege, work-product doctrine, or any other applicable privilege or immunity. Except as provided expressly herein, the parties do not waive any objections as to the production, discoverability, authenticity, admissibility, or confidentiality of documents.
II. COOPERATION AND PROPORTIONALITY
A. This Protocol is subject to amendment or supplementation based upon the results of future meet and confers and by later agreement by the parties, if necessary, in light of further developments.
B. The parties agree to use good faith efforts to resolve ESI issues consistent with Western District of Missouri ESI Principle 2.04 and to the extent the parties cannot agree, the parties will present the issue to the Court at the earliest opportunity consistent with Local Rule 37.1. The parties have acknowledged their awareness of the importance the Court places on cooperation and have committed to cooperate in good faith throughout the matter consistent with the Federal Rules of Civil Procedure and the Local Rules of this Court.
C. The parties are engaged in ongoing discussions regarding their preservation obligations and needs and agree that preservation of potentially relevant ESI will be reasonable and proportionate.
D. The procedures set forth in this Protocol do not relieve any party of the obligation to employ or prevent any party from employing additional reasonable measures consistent with principles of proportionality to preserve, search for, retrieve, and produce ESI, documents, or tangible things in response to discovery requests made by the other party. In that regard, the parties may employ one or more search methodologies, including possibly, but without limitation, the use of advanced search and retrieval technologies, to identify potentially relevant and responsive ESI, including email; the producing party shall retain the right and responsibility to manage and control searches of its data files, including the right to use additional search terms or advanced-technology procedures; and the other party retains its right to object to any such techniques or procedures that the producing party employs, to request that the producing party employ other techniques or procedures, or to seek an order to that effect.
III. SEARCH
*2 A. The parties agree that in responding to an initial Fed. R. Civ. P. 34 request, or earlier if appropriate, they will meet and confer about methods to search ESI to identify ESI that is subject to production in discovery and filter out ESI that is not subject to discovery.
B. Absent good cause shown, the parties are not required to preserve, search, collect, review, or produce the following categories of ESI except when those files are relevant and attached to another file:
1. Any electronic file which matches the Reference Data Set published by the National Institute of Standards and Technology's National Software Reference Library.
2. System or executable files (.exe, .dll, etc.).
3. Structural files not material to individual file contents that do not contain substantive content (.css, .xsl, .xml, .dtd, etc.).
4. Backup data files that are maintained in the normal course of business for purposes of disaster recovery, including backup tapes, disks, SAN, and other forms of media, and that are substantially duplicative of data that are more accessible elsewhere. Absent a party's specific written notice for good cause, no party shall be required to modify or suspend procedures, including rotation of backup media, used in the usual course of business to back up data and systems for data recovery purposes. To the extent a party seeks production of materials from sources that are not reasonably accessible, and production from such sources is agreed to by the producing party or ordered by the Court, the costs associated with the production of such materials shall be borne by the requesting party.
5. Deleted, slack, fragmented, or unallocated data.
6. Random access memory (RAM), temporary files, or other ephemeral data that are difficult to preserve without disabling the operating system.
7. On-line access data such as temporary internet files, history files, cache files, and cookies.
8. Data in metadata files frequently updated automatically, such as last-opened or last printed dates.
9. Server, system, network, or software application logs.
IV. PRODUCTION FORMATS
The parties agree to produce ESI in the formats as described in Appendix 1 attached to this Protocol. If particular documents warrant a different format or different metadata fields, or if a source of ESI is not contemplated by the formats described in Appendix 1, the parties will meet and confer concerning mutually acceptable production of such documents. The parties agree not to degrade the searchability of documents as part of the document production process and to make good faith efforts to preserve physical and logical document unitization.
V. DELIVERY OF DOCUMENT PRODUCTIONS
A. Document productions shall be made via DVD-ROMs, CD-ROMs, portable hard drives, or through secure file transfer protocol or similar secure or encrypted electronic transmission. Each production should be accompanied by a transmittal identifying a unique volume number and the Bates range contained therein.
B. If either party chooses to employ a vendor to produce or receive documents, that party shall bear the costs of such vendor and shall take reasonable steps to ensure that only persons authorized under the Joint Stipulation and Protective Order (“Protective Order”) entered in this Action have access to the depository.
VI. PROCESSING OF THIRD-PARTY DOCUMENTS
*3 A. If the non-party production is not Bates-stamped, the issuing party will endorse the non-party production with unique prefixes and Bates numbers prior to producing them to the opposing party.
B. Nothing in this ESI Protocol is intended to or should be interpreted as narrowing, expanding, or otherwise affecting the rights of the parties or any third party to object to a subpoena.
VII. ROLLING PRODUCTIONS
The parties understand that this Protocol contemplates rolling productions of documents in response to discovery requests pursuant to Fed. R. Civ. P. 34 and any other obligations whereby a party is obligated to produce documents in this Action.
VIII. DOCUMENTS PROTECTED FROM DISCOVERY
A. Pursuant to Fed. R. Evid. 502(d), the production of a privileged or work-product-protected document, whether inadvertent or otherwise, is not a waiver of privilege or protection from discovery in this case or in any other federal or state proceeding. Nothing contained herein, however, is intended to limit a party's right to conduct a review of ESI for relevance, responsiveness, and/or privilege or other protection from discovery.
B. The categories of documents protected from discovery are addressed in the Protective Order, and the parties shall meet and confer if there are other areas that they believe are not relevant or proportionate to the needs of the case.
C. Consistent with the provisions set forth in any Protective Order, the parties may use redactions to protect attorney-client privilege, attorney work product, information that any order entered in this Action allows to be redacted, information prohibited from disclosure by federal, state, or foreign statues or regulations, medical information concerning any individual, and personal identity information (such as a person's credit card numbers, telephone numbers, addresses, personal email addresses, social security numbers, racial or ethnic origin, political opinions, religious beliefs, and criminal records). Redacted documents will be produced, consistent with the provisions contained in Appendix 1 hereto, in TIFF format with corresponding searchable OCR text and the associated metadata for the document, ensuring the redacted content is fully protected from disclosure. The producing party shall substitute for redacted text in the TIFF image a label identifying the reason for the redaction, including the privilege against disclosure upon which the party claims it is entitled to redact the text, including, for example, “REDACTED-ATTORNEY/CLIENT PRIVILEGE,” “REDACTED-WORK PRODUCT,” or similar designation. The parties have not reached an agreement as to redacting non-responsive or irrelevant material from otherwise responsive documents, but agree to meet and confer in good faith should a dispute arise concerning such redactions in the future.
D. The parties agree to furnish privilege logs that comply with Fed. R. Civ. P. 26(b)(5) and any other legal requirements for all documents withheld or redacted on the basis of privilege, attorney work product or other privilege or protection recognized by this Court. The designating party shall produce a privilege log within a reasonable time following each party's rolling production of documents. When there is a chain of privileged emails, the producing party need only include one entry on the privilege log for the entire email chain reflecting the Bates number range of the chain, and need not log each email contained in the chain separately. The privilege log entry for the email chain need only provide the Last In Time Email (as defined in Appendix 1). Documents may be identified on a privilege log by category, rather than individually, if appropriate, so long as sufficient information is provided by the designating party to allow the non-designating party to assess the applicability of the claimed privilege or protection claim to the individual documents withheld from production.
*4 E. Privilege logs shall provide the privilege claimed, a brief description of the subject matter of the document, and designated objective metadata fields to the extent they contain information and the information is not privileged or protected. Designated objective metadata fields are (if available): Author, From, To, CC, BCC, Date, Subject, FileName, and FileExtension. Legal personnel shall be identified as such by adding an asterisk (*) after their names in the privilege log.
F. No party is required to include in its privilege logs:
1. Communications involving litigation counsel or in-house counsel that post-date the filing of the complaint in this Action or Northrop Grumman Guidance and Electronics Company, Inc. v. Employers Insurance Company of Wausau, et al., Case No. 1315-CV-27418 (Circuit Court of Jackson County, Missouri), respectively, and are made in confidence or otherwise qualify as attorney-client communications.
2. Work product created by litigation counsel, or by an agent of litigation counsel (other than a party), after litigation counsel was retained and as it related to the conduct of this lawsuit and/or other anticipated litigation.
3. Redactions from produced documents, provided the reason for the redaction appears on the redaction label.
G. Inadvertent failure to log privileged documents or metadata will not result in the waiver of privilege, provided that upon discovering the inadvertent omission, the producing party promptly sends to the requesting party an addendum to the privilege log providing the required privilege log entries for the document(s).
H. The inadvertent production of any materials constituting or containing attorney-client privileged information, work product, or confidential information shall be treated in the manner specified in the Protective Order entered in this case.
I. The parties do not waive any objections to the production, discoverability, admissibility, or confidentiality of documents.
Nothing in this Protocol will preclude or impair any and all protections provided the parties by any Protective Order(s) agreed and entered into by the parties. As to those documents designated “CONFIDENTIAL” by the Protective Order, such documents: (i) must be protected in transit, in use, and at rest by all who receive the documents; and (ii) any copies made of such documents must be secured on information systems and networks in a manner consistent with the best practices for data protection. The parties will use best efforts to avoid the unnecessary copying or transmittal of documents produced and designated “CONFIDENTIAL”.
IX. OTHER PROVISIONS
A. Productions need not include any indication of the document request(s) to which a document may be responsive.
B. The parties shall produce documents as they are kept in the ordinary course of business and are under no obligation to reconstruct or organize documents from how they are kept in the ordinary course of business prior to production.
C. Even where ESI would otherwise be discoverable under Section III.B. above, a party may object to a request for production of ESI that is not reasonably accessible because of undue burden or cost, including but not limited to:
1. “deleted,” “slack,” “fragmented,” or “unallocated” data on hard drives;
2. random access memory (RAM) or other ephemeral data;
3. online access data such as temporary Internet files, history, cache, cookies, etc.;
4. data in metadata fields that are frequently updated automatically, such as last opened dates;
*5 5. backup data that are substantially duplicative of data that are more accessible elsewhere; and
6. other forms of ESI, the preservation of which requires extraordinary affirmative measures and/or disproportionate cost to preserve. Inclusion of possible objections in this list is not a determination that any such objection is valid, and the parties reserve all rights with respect to such objections.
D. If asserting an objection based on Section IX.C. above, the responding party shall inform the requesting party of the electronic information it is willing to produce, the nature and location of the information claimed to not be reasonably accessible, the reason(s) why the requested production would impose an undue burden or is unreasonably costly, and afford the requesting party an opportunity to propose an alternative means of compliance with the request.
E. Within thirty (30) days of settlement or final adjudication, including the expiration or exhaustion of all rights to appeal or petitions for extraordinary writs, each party or non-party to whom any materials were produced shall, upon request of the producing party, promptly destroy all documents, items or data received including, but not limited to, copies or summaries thereof, in the possession or control of any expert or employee. The requesting party shall, upon request of the producing party, provide written certification of destruction to the producing party no later than thirty (30) days after the date of the request or the termination of this matter, whichever is later.
X. HARD COPY DOCUMENTS
The parties acknowledge and agree that this Protocol governs the production of ESI. In the event that the Parties determine that there is a large volume of hard copy documents that require review by one or both parties, which have not already been electronically imaged, the Parties agree to work in good faith to determine a solution to review such hard copy documents.
XI. MODIFICATION
This Protocol may be modified by a Stipulated Order of the parties or by the Court for good cause shown.
IT IS SO ORDERED.