AND NOW, THIS 22nd DAY OF MAY 2023, upon consideration of the parties Proposed Discovery Protocol for Electronically Stored Information (Doc. 157), this Court recognizes the documents as an agreement among the parties and will accordingly enforce it as such. In doing so, this Court expresses no opinion as to the merits of the agreement and neither approves nor disapproves of its contents. ACCORDING IT IS HEREBY ORDERED THAT the parties' Proposed Discovery Protocol for Electronically Stored Information (Doc. 157) is ACCEPTED.

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DISCOVERY PROTOCOL FOR ELECTRONICALLY STORED INFORMATION

The following Discovery Protocol for Electronically Stored Information (the “ESI Protocol” or “Protocol”) is entered into by and among counsel for Plaintiffs William L. Burrell Jr., Joshua Huzzard, Dampsey Stuckey, and the proposed Class and Collective (collectively, “Plaintiffs”) and counsel for Defendants Lackawanna Recycling Center, Inc. (“LRCI”), Lackawanna County Solid Waste Management Authority (“LCSWMA”), and Lackawanna County (collectively, “Defendants”) in the above-captioned action (the “Action”).

1. Purpose. This Protocol is intended to streamline production of Electronically Stored Information (“ESI”) to promote a “just, speedy, and inexpensive determination” of this Action, as required by Rule 1 of the Federal Rules of Civil Procedure.

2. Definitions and Scope. The following ESI Protocol shall control the production of discoverable “documents” and “electronically stored information” (as those terms are used in the Federal Rules of Civil Procedure, including Rule 34(a)) (collectively, “Documents”), when production commences unless there is good cause to deviate from this Protocol, by agreement of the Parties or upon further order from the Court.

a. The term “Party” or “Parties” shall mean any named party to this Action, including any named Party added or joined to any complaint in this Action.

b. The phrase “Producing Party” shall mean the Party producing Documents.

c. The phrase “Receiving Party” shall mean the Party receiving production of Documents.

d. The phrase “Requesting Party” shall mean the Party serving the requests for production of Documents, including a request for the production of discoverable ESI.

3. Preservation. The Parties have discussed their preservation obligations and needs and agree that preservation of potentially relevant ESI will be reasonable and proportionate. The Parties have not at this time identified any sources of data that are not reasonably accessible, but to the extent a Party identifies one or more categories of discoverable ESI or ESI systems for which it will be unduly burdensome to preserve ESI created or received since September 29, 2004, the Parties will meet and confer and attempt to negotiate a further-refined preservation protocol.

4. Responding to Discovery Requests. In general, the Parties agree that:

a. The proportionality standard set forth in Federal Rule of Civil Procedure 26(b)(1) should be applied in this case when serving and responding discovery and engaging in meet-and-confer discussions related to discovery. 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 possible. Moreover, when a discovery request(s) poses a potential undue burden on the Producing Party, the Parties agree that they will meet and confer within five business days of any request to meet and confer or such other time as the Parties may mutually agree, to discuss various options available to reduce the perceived burden, including any costs of production. In the event an agreement cannot be reached, the Producing Party and the Receiving Party shall submit their respective positions to the Court.

b. In general, the Producing Party is best situated to decide how to search for and produce ESI responsive to discovery requests. Consequently, the Producing Party shall determine the method used to search for and produce responsive ESI, and such methods shall be reasonable and proportional to the needs of the case.

c. If the Producing Party is searching for and producing Documents through the use of search terms, the Producing Party will disclose the list of search terms to the Receiving Party and provide the Receiving Party the opportunity to propose additional reasonable search terms, where needed, in a timely manner. The Receiving Party will have five business days from receipt of the search terms, or such other time as the Parties mutually agree, to propose additional terms. The Producing Party may refuse to add terms to the list if it generates or has the potential to generate an unreasonable number of nonresponsive Documents, would result in duplicative search efforts or creates an undue burden. The Parties may seek Court intervention if they cannot reach agreement. Focused terms and queries rather than overbroad queries should be employed.

5. The Parties will meet and confer as necessary regarding custodians when responding to discovery requests.

6. Production Format. The following parameters shall apply to ESI production:

a. General Document Image Format. Responsive electronic discovery shall be produced to the Requesting Party in a commercially reasonable manner or in the manner kept in the Producing Party’s regular course of business, whichever is less burdensome and more economical for the Producing Party. However, production formats may include PDFs, or an electronic single page TIFF format containing viewable images and corresponding OCR or extracted text load files that will allow the Receiving Party to load these materials into a standard, industry-wide e-discovery document-management program such as Summation or Concordance. Further, the production format for Documents such as Excel spreadsheets, Microsoft Access files and .CSV files may be provided in native format. If a Document is more than one page, the unitization of the Document and any attachments and/or affixed notes shall be logically separated, maintaining the relationship between a Document and its attachments when reasonably feasible. If the Document contains color markings that are essential to understand the Document, the Document must be produced in color.

b. Text-Searchable Documents. Although no Party has an obligation to make its production text-searchable, when possible, if a Party’s Documents already exist in text-searchable format independent of this Action, or are converted to text-searchable format for use in this Action, including for use by the Producing Party’s counsel, then such Documents shall be produced in the same text-searchable format at no cost to the Receiving Party.

c. All images must be assigned a unique Bates number that is sequential within a given Document and generally across the production sets.

d. Confidentiality Designation. Should a protective order be entered in this case, responsive Documents will be stamped with the appropriate confidentiality designations.

e. Native Files. ESI may be produced in its native file format. If a file has been redacted, a redacted native file or PDF or TIFF images of the redacted document will suffice in lieu of the original native file and extracted text.

f. Format for Hard-Copy (i.e., non-ESI) Productions: Hard-Copy productions may be copied as they are maintained in the ordinary course of business. If they were imaged, they should be produced in that format.

g. Documents from Structured Data/Databases: The Producing Party will produce data exported from databases in a reasonably useable format, such as Excel, or in a PDF report format if reasonably useable or in another reasonably useable format. If data from databases or other structured-data sources cannot be produced in a reasonably useable format, the Parties will meet and confer to discuss the issue.

h. Load File Formats. To the extent possible, ESI will be produced with a standard load file. To the extent it is not possible to produce some or all ESI with such a file, the parties will meet and confer regarding an appropriate alternative production format.

i. Metadata for ESI. To the extent possible, the metadata fields set forth below will be provided for each electronic Document produced in electronic single-page TIFF format. However, the Parties agree that in some circumstances, for instance, due to the passage of time, or format available, it may not be feasible or possible to produce some or all of the below referenced metadata fields. To the extent it is not possible to produce some or all of the below referenced metadata fields, the parties will meet and confer regarding an appropriate alternative ESI protocol.

• Custodian;
• Document title;
• Email subject;
• Author;
• From (Sender/Author for e-mail);
• Attachment count;
• Date sent;
• Date created (date the Document was created);
• Time created (may be combined with Date created);
• Date last modified;
• Time last modified;
• Date last accessed;
• Recipients (all “to”) for e-mails;
• Carbon copies (all “cc”s) for e-mail;
• Blind carbon copies (all “bcc”s) for e-mail;
• Sensitivity level of an e-mail;
• Starting Bates (beginning Bates number);
• Ending Bates (ending Bates number);
• Confidentiality designation, if applicable;
• Original file path; and
• Original file name.

j. Any Document attached or linked to any ESI will be produced as part of the same Document production as its parent Document and will be Bates numbered consecutively following the parent Document. Nothing in this provision shall be construed to prevent withholding a Document from production based on privilege or it being non-responsive.

k. Production Media. Documents may be transferred through FTP, on a CD-ROM, DVD, external hard drive, USB drive or such other readily accessible computer or electronic media.

7. Privilege Logs. A Producing Party will produce a privilege log within 90 days of the first production and on a rolling basis thereafter a separate privilege log for each production within 30 days after the production. The Producing Party and the Receiving Party may modify the deadlines for production of privilege logs by agreement. The Parties agree they will meet and confer as to the appropriate format of a privilege log if necessary.

a. The Parties agree that no party is required to conduct a search or prepare a privilege log for any discovery request or portion thereof to which non-privileged or non-work product objections have been made until the non-privileged or non-work product objections have been overruled and the right to object based on the attorney-client privilege or work product doctrine is preserved until that time. Also, the Parties agree that there is no duty to log: (1) any litigation files created or maintained by Plaintiffs’ counsel or Defendants’ counsel (or those working under their direction or supervision); (2) privileged documents generated after the filing of the Action; (3) documents consisting of attorney work-product sent from an attorney for a Party (“attorney” as used herein shall include an attorney’s paralegal or support staff) and solely addressed “To” one or more other attorneys for the party (regardless of whether employees, consultants, or agents for the party are identified as persons receiving a copy on the email); or (4) documents consisting of attorney-client privileged material sent by an attorney for a party and solely addressed “To” one or more employees, consultants, agents, or attorneys of that party, or from an employee, consultant, or agent for a party solely addressed “To” one or more attorneys for that party (regardless of whether other employees, consultants, or agents for the party are identified as persons receiving a copy on the email).

b. If any disputes arise concerning any privilege log, the Parties shall meet and confer to try to reach a mutually agreeable solution.

8. Reservations of Rights. Nothing herein shall be construed to affect the discoverability or admissibility of any document or data. All objections to the discoverability or admissibility of any document or data are preserved and may be asserted at any time. Nothing herein shall be interpreted to expand any Party’s discovery obligations or to alter any Party’s rights to object to any discovery request as provided in the Federal Rules of Civil Procedure. Except as expressly stated, nothing in this ESI Protocol affects the Parties’ discovery obligations under the Federal Rules of Civil Procedure, Local Rules, or orders of the Court.

9. Inadvertent Disclosure. Inadvertent disclosure of privileged ESI does not constitute a waiver of privilege with respect to that ESI. Promptly after receiving notice of the inadvertent production of such ESI or ESI that appears on its face to be privileged information, the Party which received it shall (1) return the ESI or certify that it has been deleted; and (2) destroy or delete any copies of the ESI or notes concerning it in that Party’s possession. In the event of a dispute over whether the ESI inadvertently produced is privileged, the Party receiving the ESI shall promptly after receiving a request for its return notify the Producing Party of the dispute and may thereafter retain the ESI until the claim of privilege is resolved. The Receiving Party will not use or distribute the ESI until the claim of privilege is resolved, except to the extent that the use or distribution of the ESI is necessary to resolve the claim of privilege. 

10. Other Orders. The terms of any protective order entered in this action shall remain in full force and effect and nothing contained herein is to be construed as a modification of the terms of any such order(s).