UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
December 23, 2011
CANDACE CASIDA, INDIVIDUALLY, AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
SEARS HOLDINGS CORPORATION AND SEARS, ROEBUCK & CO.,
The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
[Additional counsel for Plaintiff listed on signature page]
STIPULATED AGREEMENT AND ORDER RE ELECTRONICALLY STORED INFORMATION
Plaintiff Candace Casida ("Plaintiff") and Defendants Sears Holdings Corp. and Sears, Roebuck and Co. ("Defendants") and collectively ("the parties") through their undersigned 3 attorneys, recognize that certain documents*fn1 and electronically stored information ("ESI") are 4 potentially relevant to the parties' claims and defenses in this action and the parties have engaged 5 and will soon engage, in discussions regarding the identification and production of such 6 documents and ESI.*fn2 7
To facilitate the cost-effective and speedy exchange of discovery in accordance with Rule 26, the parties stipulate as follows: 9
I.SUMMARY OF CLAIMS AND DEFENSES
As set forth in the parties' joint scheduling report, this case is a putative class action alleging violations of California wage and hour law brought by Plaintiff Candace Casida against 12 Defendants Sears, Roebuck and Co. and Sears Holdings Corporation in connection with 13
Plaintiff's past employment with Sears, Roebuck and Co. as an "Assistant Manager" at a store in 14
Bakersfield, California. Plaintiff alleges that Defendants erroneously classified her and other 15 members of a proposed class of "Assistant Managers" as exempt from California's overtime laws, 16 resulting in the non-payment of overtime wages and other violations of California law. Plaintiff 17 alleges that she and members of the proposed class primarily performed non-exempt job duties 18 and lack the kind of independent judgment and discretion that is needed to qualify for the 19 managerial exemptions to overtime and other wage protections under California law, and were 20 therefore entitled to overtime compensation. Plaintiff further asserts that Defendants failed to pay 21 all compensation due and owing at termination, failed to provide itemized wage statements, and 22 violated California's unfair competition law.
Defendants assert that Plaintiff and other "Assistant Managers" were properly classified as exempt and were paid correctly. Defendants dispute that this case is suitable to proceed as a class 3 action because of differences between putative class members, and the need (as required by 4 California law) for a week-by-week analysis of how each "Assistant Manager" actually spent his 5 or her time in order to establish qualification for exempt status. 6
This case was originally filed where Defendants maintain their headquarters in the Northern District of Illinois, Case No. 1:11-cv-02110, and was assigned to the Honorable Milton Shadur. In her original Complaint, Plaintiff brought a claim for overtime pay on behalf of a 9 proposed nationwide class of Sears' Assistant Managers under the Fair Labor Standards Act, 29 10 U.S.C. § 201 et seq. ("FLSA"), as well as the claims stated above under California law. After 11 briefing by the parties, the Court declined to retain supplemental jurisdiction over the California 12 state law claims and severed and transferred those claims to the Eastern District of California on 13 June 24, 2011 ("the California proceeding"). Plaintiff's FLSA claim remains pending in the 14 Northern District of Illinois ("the Illinois proceeding"). 15
The parties agree that discovery of ESI should be probative of the claims and defenses described above.
II.SUMMARY OF EDISCOVERY
The parties held a meet and confer session on July 5, 2011, regarding preservation of documents including ESI. On July 11, 2011, Plaintiff propounded several discovery requests on Defendants in the Illinois proceeding, including requests for documents and interrogatories that 21 potentially encompass ESI (including, but not limited to, RFP 6, 15, 16, 17, 22, 24, 29, 30, 32, 33, 22 and Interrogatory No. 3). On September 14, and September 28, 2011, Defendants provided 23 responses and objections to those requests.
On November 8, 2011, the parties met and conferred as ordered by the Eastern District of California to finalize an email protocol. Plaintiff sent several questions regarding Defendants' 26 email systems and custodians, to which Defendants provided preliminary answers on November 27 17, 2011.
On November 9, 2011, Plaintiff propounded similar discovery requests on Defendants in the California proceeding, including requests for documents and interrogatories that potentially 3 encompass ESI (including, but not limited to, RFP 6, 15, 16, 17, 22, 24, 29, 30, 32, 33, and 4 Interrogatory No. 3).
III.IDENTIFICATION OF EDISCOVERY LIAISONS
The parties identify their ediscovery liaisons as follows: Plaintiff identifies: Matthew George, counsel for Plaintiff.
Defendants identify: Jinnifer Pitcher, outside counsel for Sears Holdings Corp. and Sears, Roebuck and Co. In addition, in-house ediscovery attorney Trevor Torrence may attend meet and 10 confer conferences as needed as an observer. 11
IV.MEET AND CONFER PROCESS
To expedite discovery of relevant electronic evidence and reduce costs, the parties will cooperate and discuss procedures or protocols to facilitate the identification, retrieval and 14 production of ESI responsive to the parties' discovery requests. The parties agree to share 15 information about relevant sources of ESI to facilitate the discovery process and to avoid formal 16 discovery procedures (e.g., PMK depositions and interrogatories) that might otherwise be 17 required for the parties to exchange information regarding ESI, if possible. However, if after 18 utilizing the dispute resolution process in Section V the parties are at an impasse, the parties 19 reserve their right to contend that depositions or other discovery may be necessary in case 20 informal procedures do not succeed. 21
If requested discovery is probative of the relevant issues, the parties will meet and confer 22 to determine whether ESI is unduly burdensome and/or reasonably accessible (i.e., whether 23 parties can identify designated custodians, how data is stored, time limitations, searchability, 24 etc.). The parties will also discuss any other anticipated burden and expense of discovery under 25 Rule 26(b)(2)(b), and if a party contends that the data is unduly burdensome or not reasonably 26 accessible, the parties will discuss cost-shifting and alternative means for obtaining information 27 (e.g., sampling, non-ESI discovery, examples, etc.). The parties reserve their right to not produce any ESI that requires extraordinary affirmative business measures (i.e., not utilized in the 2 ordinary course of business).
In the spirit of cooperation the parties shall meet and confer upon any dispute arising out of the implementation of the provisions in this Protocol. All such meet and confer discussions 6 shall be guided by any governing agreements between the parties, the Federal Rules of Civil 7 Procedure, the local rules of this court, the Judge's standing orders, and case law construing the 8 same. 9
Unless otherwise agreed to or modified by the mutual consent of the parties, the standard Meet and Confer Process (the "Meet and Confer Process") will be as follows: 11
1. The parties will meet and confer in good faith through counsel and ediscovery 12 liaisons as well as representatives from an appropriate e-discovery vendor if necessary, either in 13 person or by phone, on any discovery dispute; 14
2. If the parties are unable to resolve the dispute, , the parties agree to request a status 15 conference with the magistrate judge to resolve the dispute; and 16
3. If the dispute remains unresolved after the status conference, only then shall the 17 parties move the Court for relief. 18
The producing Party shall have the right to "claw back" (i.e., have returned from the 20 receiving Party) any information disclosed in connection with the litigation of this case which 21 contains confidential commercial information, information protected by the attorney-client 22 privilege, information protected by the attorney work product doctrine, and any other applicable 23 privilege or immunity ("Disclosed Protected Information"). The disclosure of any Disclosed 24
Protected Information shall not be deemed a waiver or forfeiture of any claim of privilege that the 25 producing Party would be entitled to assert with respect to the Disclosed Protected Information 26 and its subject matter. The producing Party must exercise its rights under this Paragraph by 27 providing a written notice to the receiving Party that the producing Party is invoking its right to 28 claw back such documents and identifying the documents to be returned. Upon receipt of such written notice, the receiving Party shall immediately cease any use, whatsoever, of such 2 documents. Within ten (10) days of receiving such written notice, the receiving Party shall 3 provide to the producing Party a written confirmation that all Disclosed Protected Information has 4 been returned or destroyed, or state its intention to move to compel the production of Disclosed 5
Protected Information. Nothing in this Paragraph limits the right of any party to petition the 6 Court for in camera review of the documents at issue in such a motion.
A.Discoverability and Admissibility
Nothing in this Order 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 11 data are preserved and may be asserted at any time. 12
B.Discovery on Discovery
In accordance with the spirit of cooperation reflected in this Order, written discovery regarding information technology systems, document preservation, collection, search or 15 processing shall not be propounded unless the Requesting Party makes a good faith effort to meet 16 and confer to obtain the information in accordance with Section IV first. This shall not prohibit 17 parties from asking deponents regarding the source, collection and authenticity of documents 18 produced in response to requests for production of documents. 19
C.Illinois and California Proceedings
The parties recognize that discovery in the matter of Casida v. Sears Holdings Corporation, et al., Case No. 1:11-cv-02110 (N.D. Ill.), may overlap or be duplicative of 22 discovery in this matter. To avoid additional burden and expense on the parties from having to 23 take and produce duplicative discovery, the parties agree that information and documents 24 produced in that lawsuit, including ESI, will be produced pursuant to the above protocol, and may 25 also be used in this proceeding subject to any applicable objections as to the admissibility of such 26 information and documents. Any ESI produced in that case shall also be treated pursuant the 27 terms of the protective order entered by the District Court for the Northern District of Illinois. 28
Further, this paragraph shall in no way be deemed an admission that any information or documents produced in this litigation is relevant or otherwise admissible for purposes of the 2 matter of Casida v. Sears Holdings Corporation, et al., Case No. 1:11-cv-02110 (N.D. Ill.). 3
IT IS SO ORDERED.