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Aberin v. American Honda Motor Co., Inc.

United States District Court, N.D. California

April 3, 2017

LINDSEY ABERIN, DON AWTREY, DANIEL CRINER, JARED CROOKS, REBECCA GRAY, MARK GERSTLE, JOHN KELLY, YUN-FEI LOU, JORDAN MOSS, DONALD TRAN, ARPAN SRIVASTAVA, DONALD TRAN, and MELISSA YEUNG, individually and on behalf of all others similarly situated. Plaintiffs,
v.
AMERICAN HONDA MOTOR CO., INC., Defendant.

          Livia M. Kiser (SBN 285411) Michael C. Andolina (admitted pro hac vice) Andrew J. Chinsky (admitted pro hac vice) Kristen E. Rau (pro hac vice to be filed) SIDLEY AUSTIN LLP Eric B. Schwartz (SBN 266554) SIDLEY AUSTIN LLP Attorneys for Defendant American Honda Motor Co., Inc.

          Christopher A. Seeger (admitted pro hac vice) Stephen Weiss (admitted pro hac vice) Scott A. George (admitted pro hac vice) Daniel R. Leathers (admitted pro hac vice) SEEGER WEISS LLP Steve W. Berman (admitted pro hac vice) Catherine Y.N. Gannon (admitted pro hac vice) HAGENS BERMAN SOBOL SHAPIRO LLP Attorneys for Plaintiffs and the Proposed Classes and Subclasses

          Roland Tellis (SBN 186269) Mark Pifko (SBN 228412) BARON & BUDD, P.C. James E. Cecchi (admitted pro hac vice) Lindsey H. Taylor (admitted pro hac vice) CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO, P.C. Attorneys for Plaintiffs and the Proposed Classes and Subclasses

          [PROPOSED] ORDER REGARDING ELECTRONICALLY STORED INFORMATION

         1. PURPOSE

         This Order will govern discovery of electronically stored information (“ESI”) in this case as a supplement to the Federal Rules of Civil Procedure, this Court's Guidelines for the Discovery of Electronically Stored Information, and any other applicable orders and rules.

         2. COOPERATION

         The Parties are aware of the importance the Court places on cooperation and commit to cooperate in good faith throughout the matter consistent with this Court's Guidelines for the Discovery of ESI.

         3. LIAISON

         The Parties have identified liaisons to each other who are and will be knowledgeable about and responsible for discussing their respective ESI. Plaintiffs' liaison will be Scott Alan George. Plaintiffs are referred to collectively herein as a “Party.” Defendant American Honda Motor Co. Inc.'s (“AHM's”) liaison will be Andrew Chinsky. Each e-discovery liaison will be, or have access to those who are, knowledgeable about the technical aspects of e-discovery, including the location, nature, accessibility, format, collection, search methodologies, and production of ESI in this matter. The Parties will rely on the liaisons, as needed, to confer about ESI and to help resolve disputes without court intervention.

         4. PRESERVATION

         The Parties have discussed their preservation obligations and needs and agree that preservation of potentially-relevant ESI will be reasonable and proportionate. To reduce the costs and burdens of preservation and to ensure proper ESI is preserved, the Parties agree to the following:

a) Within 30 days after entry of this Protocol, each Party shall provide to the other Party: (1) a description of each Party's potentially responsive data sources, including databases that are likely to contain responsive information, (2) a list of individual custodians whose reasonably-accessible emails and other ESI (as applicable) will be searched in accordance with this Order. Custodians shall initially be identified by name, whether they are current or former employees and by general job titles or descriptions (e.g. “marketing manager”). For each of its custodians, the Party will confirm the custodian is subject to the preservation hold that the Party has implemented in this case.
b) The Parties will agree on the number of custodians per Party for whom ESI will be preserved after they exchange the information set forth in Paragraph 4 a) above. The Parties may add or remove custodians by mutual agreement.
c) Among the sources of data the Parties agree are not reasonably accessible because of undue burden or cost pursuant to Fed.R.Civ.P. 26(b)(2)(B), the Parties agree they are under no obligation to preserve or make production from the following categories of information unless and until: (1) a Party provides written notice to the other Party identifying a specific category or categories the Party in good faith believes the ESI should begin to be preserved or discovered as well as the reasons, including the Party's basis for believing its request(s) are proportional to the needs of the case pursuant to Fed.R.Civ.P. 26(b)(1); and (2) either (i) mutual agreement of the Parties, or (ii) a finding of good cause by the Court that such ESI should be preserved or discovered (which the Parties acknowledge may involve cost-sharing or cost-shifting, as applicable):
i. Backup data files that are maintained in the normal course of business for purposes of disaster recovery, including (but not limited to) backup tapes, disks, SAN, and other forms of media, and that are substantially duplicative of data that are more accessible elsewhere, and the Parties agree that no Party shall be required to modify or suspend procedures, including rotation of backup media, used in the normal course of business to back up data and systems for disaster recovery purposes unless first ordered to do so by the Court; and
ii. For purposes of this Paragraph 4 (c), the Parties agree that deletion of ESI in the normal course of business before the time the preservation obligation in this litigation came into effect is not sufficient grounds for the other Party to seek to preserve or discover any information identified in 4 (c)(i) or 4 c)(ii).
d) Among the sources of data the Parties agree are not reasonably accessible, the Parties agree not to preserve or discover the following:
i. ESI deleted in the normal course of business before the time a preservation obligation in this matter came into effect;
ii. Deleted, “slack, ” fragmented, or unallocated data only accessible by forensics;
iii. Random access memory (RAM), temporary files, or other ephemeral data that are difficult to preserve without disabling the operating system;
iv. Data in metadata fields frequently updated automatically, such as last-opened or last-printed dates;
v. Electronic data temporarily stored by laboratory equipment or attached electronic equipment, provided that such data is not ordinarily preserved as part of a laboratory report;
vi. Voicemail, text message and instant messages that are not substantively related to the products at issue in this matter and that are not retained in the ordinary course of business;
vii. Server, system, network, or software application logs;
viii. Structural files not material to individual file contents (e.g. .CSS, .XSL, .XML, .DTD, etc.); and
ix. On-line access data such as (without limitation) temporary internet files, history files, cache files, and cookies.

         5. SEARCH

         The Parties agree to the employ the following processes and parameters for searching ESI:

a) To contain costs in the identification of relevant ESI for review and production, the Parties may meet and confer to discuss either the use of reasonable search terms, file types, and date ranges or the use of advanced search and retrieval technologies, such as predictive coding or other technology-assisted review.
b) AHM will propose a list of search terms to Plaintiffs by April 24, 2017. Plaintiffs will meet and confer with AHM by May 15, 2017. Agreement on search terms will be completed promptly, but such agreement will not itself prevent either Party from seeking additional search terms later subject to the other Party's agreement or the Court's intervention, provided ...

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