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David R. Hilty, Individually, and Derivatively On Behalf of Geisha v. Lonnie Moore

July 5, 2012

DAVID R. HILTY, INDIVIDUALLY, AND DERIVATIVELY ON BEHALF OF GEISHA HOUSE, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, AND GEISHA SANTA ANA, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, PLAINTIFF,
v.
LONNIE MOORE, ET AL., DEFENDANTS, AND
GEISHA HOUSE, LLC, ET AL., NOMINAL DEFENDANTS.



The opinion of the court was delivered by: Hon. Paul L. Abrams United States Magistrate Judge

NOTE: CHANGES MADE BY THE COURT

STIPULATED ORDER RE: PRESERVATION OF DOCUMENTS

ORDER

The Court having considered the Stipulation Re: Preservation of Documents ("Stipulation") entered into on or about June 27, 2012, by and among plaintiff David R. Hilty, defendants Lonnie Moore, Michael Robert Malin, 2Hype Productions, Inc., and LTM Consulting, Inc., and nominal defendants Geisha House, LLC and Geisha Santa Ana, LLC (collectively, the "Parties," and each such party a "Party"), which Parties constitute all those who thus far have appeared in this action, and good cause appearing therefor, IT IS HEREBY ORDERED:

1.Duration

1.1 Unless all Parties agree in writing, or the Court orders, otherwise, this Order shall apply during the pendency of the above-captioned action (the "Action").

2.General duty to preserve

2.1 The term "documents," as used herein, is to be interpreted in its broadest sense to encompass both paper, or "hard copy," documents and electronically stored information of any kind, specifically including, without limitation: writings; records; files; correspondence; reports; memoranda; calendars; diaries; minutes; electronic messages; voicemail; E-mail; telephone message records or logs; computer and network activity logs; hard drives; backup data; removable computer storage media such as tapes, disks, and cards; printouts; document image files; Web pages; databases; spreadsheets; software; books; ledgers; journals; orders; invoices; bills; vouchers; checks; statements; worksheets; summaries; compilations; computations; charts; diagrams; graphic presentations; drawings; films; charts; digital or chemical process photographs; video, phonographic, tape, or digital recordings or transcripts thereof; drafts; jottings; and notes. Information that serves to identify, locate, or link such material, such as file inventories, file folders, indices, and metadata, is also included in this definition.

2.2 Paper, or "hard copy", documents that must be preserved include, without limitation: documents stored in central files; personal files; files stored off-site or in storage; files of former employees that are still maintained by a Party; documents in a Party's possession that are stored off-site (as in a home); documents in the possession of third parties over whom a Party has control and from whom that Party has the right, authority or practical ability to obtain with respect to the documents; printed emails; letters; calendars; notes; drawings; photographs; designs; memoranda; and other correspondence.

2.3 Electronic documents and files that must be preserved include, without limitation: information stored on any company servers or on servers of third parties over whom a Party control and from whom that Party has the right, authority or practical ability to obtain with respect to the documents; emails; computer calendars; information stored on desktops and laptops; information stored on portable phones (including text messages and email) and digital assistants (such as a Blackberry, android, or IPhone); information stored on home computers; information stored on retired workstations; information stored on thumb drives, USB drives, and flash media; information stored on CDs and DVDs; and information stored on digital cameras.

2.4 Subject to the limits set forth in this Order, each Party shall take reasonable and good faith steps to identify and preserve all potentially relevant documents (which term includes electronically stored information) that are in the Party's possession, custody, or control. The documents subject to this duty include any documents that a Party has the right, authority or practical ability to obtain from a non-party to the Action.

2.5 The duty to preserve is to be interpreted broadly to accomplish the goal of maintaining the integrity of all documents that are potentially relevant to subject matter involved in the Action and/or reasonably anticipated to be subject to discovery under Fed. R. Civ. P. 26, 45, and 56(e) in the Action ("potentially relevant documents"). Except as provided in this Order, the duty to preserve includes the duty to take reasonable steps to prevent the partial or full destruction, alteration, testing, deletion, overwriting, shredding, incineration, wiping, relocation, migration, theft or mutation of documents, as well as to prevent any action that would make the documents incomplete or inaccessible.

2.6 It is acknowledged that the documents subject to the duty to preserve may include documents that are not discoverable (for example, on the basis of privilege) or that are not admissible in evidence, provided that they are reasonably related to the Action.

2.7 It is also acknowledged that the preservation and production of voicemail and video is costly and burdensome. In absence of a clear need from the requesting Party and shifting of cost from the producing Party, preservation and production of said media shall not be required.

3.Preservation of documents

3.1 Litigation Hold Notices: Within ten (10) days following the entry of this Order, each Party shall circulate to each person who may reasonably be expected to have possession or custody of potentially relevant documents within the control of that Party, within the meaning of Fed. R. Civ. P. 34 (a "Custodian"), a litigation hold notice in a form substantially similar to that attached to this Order as Attachment "A" ("Litigation Hold Notice"). Thereafter, the Parties shall re-notify these Custodians (and any subsequently identified Custodian) at least once every ninety (90) days of the continuing duty to preserve potentially relevant documents. Each Party shall, promptly following the circulation of the ...


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