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Christina Mitchell, et al v. Skyline Homes

February 25, 2011


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge


Plaintiff's motion for interim preservation order came on regularly for hearing February 24, 2011. Shana Scarlett appeared for plaintiffs and Daniel Kelly appeared for defendant. Upon review of the documents in support and opposition, upon hearing the arguments of counsel, and good cause appearing, THE COURT ENTERS THE FOLLOWING INTERIM PRESERVATION ORDER:


1. This case alleges that Skyline Homes, Inc. "Skyline" has failed to manufacture homes with adequate weather-resistive barriers. Weather-resistive barriers are part of exterior wall systems that protect building materials from exterior-water penetration. This case is brought on behalf of the named Plaintiffs and a class of California residents who purchased Skyline homes. Plaintiffs seek the preservation of all Documents related to these claims.*fn1


2. This Order addresses the preservation of documents. The Order does not address, limit or determine the relevancy, discoverability, or admissibility of any document, regardless of whether the document is required to be preserved pursuant to the terms of the Order. The Order does not expand the preservation requirements under the Federal Rules of Civil Procedure, and it does not limit any protection provided by Federal Rule of Civil Procedure 37(e) or other applicable Rules. The Parties do not waive any objections as to the production, discoverability, or confidentiality of Documents, including electronically stored information ("ESI"), preserved under the Order. The Order also does not address the Parties' respective responsibilities for the costs of retrieving or producing Documents that may be subject to discovery. Moreover, nothing in the Order limits or specifies the form of production of Documents as provided in the Federal Rules of Civil Procedure or as may be agreed to by the Parties or ordered by the Court.

3. The scope of this Order defines preservation obligations of the Parties on a going-forward basis unless otherwise specified in this Order. The Parties agree to reserve all rights as to preservation obligations prior to entry of this Order. This Order does not authorize the destruction of, or failure to preserve, existing Documents.


4. "Preservation", "Preserve(d)" or "Preservation" is to be interpreted broadly to accomplish the goal of maintaining the integrity of all documents, data, and tangible things reasonably anticipated to be subject to discovery under Federal Rule of Civil Procedure 26, 45 and 56(e) in this action. Preservation includes taking reasonable steps to prevent the partial or full destruction, alteration, testing, deletion, shredding, incineration, wiping, relocation, migration, theft, or mutation of such material, as well as negligent or intentional handling that would make material incomplete or inaccessible.

5. "Document(s)" shall mean Documents, within the scope and subject matter of this order, as the term is used in Fed. R. Civ. P. 34(a)(I)(A): "[A]ny designated documents or electronically stored information - including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations - stored in any medium from which information can be obtained either directly or, if necessary, after translation [of data] by the responding party into a reasonably usable form" that are reasonably anticipated to be the subject of discovery in this action.

6. "Identical Copy" (and all of its variants) shall mean: (a) A full and complete copy of the original paper Document that does not differ from the original paper Document because of highlights, underlining, marginalia, total pages, attachments, notes, markings or other alterations. Each such differing copy shall itself be considered an original paper Document and not an identical copy. For example where there are two Documents with identical content but one has highlighting and the other does not, in such a situation, the two Documents shall not be considered identical.

(b) An electronic Document that is a copy of the original electronic Document excluding metadata. An Identical Copy shall include matching Documents that contain the same content excluding metadata. For example, an identical copy would include copies of the same Document saved on the local hard drives and network shared drives of multiple individuals.

7. "Network Accessible Storage Device(s)" shall mean any hard drive or other data-storage device, server or electronic repository mounted or connected through a network directly, or indirectly via the internet, such that it is ...

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