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Shotwell v. Zillow Group, Inc.

United States District Court, W.D. Washington, Seattle

November 7, 2019

JAMES SHOTWELL, et al., Plaintiff,
v.
ZILLOW GROUP INC., et al., Defendant.

          Colin M. George ARDENT LAW GROUP, PLLC Local Counsel for Lead Plaintiffs

          Laurence M. Rosen Jonathan Stern THE ROSEN LAW FIRM, P.A. Lead Counsel for Lead Plaintiffs

          Sean C. Knowles, WSBA No. 39893 PERKINS COIE LLP Matthew D. Ingber (pro hac vice) Joseph De Simone (pro hac vice) MAYER BROWN LLP Kelly Kramer (pro hac vice) Stephanie C. Robinson (pro hac vice) MAYER BROWN LLP Counsel for Defendants

          ORDER

          JOHN C. COUGHENOUR, JUDGE

         Pursuant to the parties' stipulation and proposed order (Dkt. No. 73), the Court ENTERS the following order regarding the discovery of electronically stored information (“ESI”):

         A. General Principles

         1. An attorney's zealous representation of a client is not compromised by conducting discovery in a cooperative manner. The failure of counsel or the parties to litigation to cooperate in facilitating and reasonably limiting discovery requests and responses raises litigation costs and contributes to the risk of sanctions.

         2. The proportionality standard set forth in Fed.R.Civ.P. 26(b)(1) must be applied in each case when formulating a discovery plan. To further the application of the proportionality standard in discovery, requests for production of electronically stored information (“ESI”) and related responses should be reasonably targeted, clear, and as specific as possible.

         B. ESI Disclosures

         Within thirty (30) days after the Fed.R.Civ.P. 26(f) conference, or at a later time if agreed to by the parties, each party shall disclose:

         1. Custodians. The five custodians most likely to have discoverable ESI in their possession, custody or control. The custodians shall be identified by name, title, connection to the instant litigation, and the type of the information under his/her control.

         2. Non-custodial Data Sources. A list of non-custodial data sources (e.g., shared drives, servers, etc.), if any, likely to contain discoverable ESI.

         3. Third-Party Data Sources. A list of third-party data sources, if any, likely to contain discoverable ESI (e.g., third-party email and/or mobile device providers, “cloud” storage, etc.) and, for each source, the extent to which a party is (or is not) able to preserve information stored in the third-party data source.

         4. Inaccessible Data. A list of data sources, if any, likely to contain discoverable ESI (by type, date, custodian, electronic system or other criteria sufficient to specifically identify the data source) that a party asserts is not reasonable accessible under Fed.R.Civ.P. 26(b)(2)(B).

         C. Preservation of ESI

         The parties acknowledge that they have a common law obligation to take reasonable and proportional steps to preserve discoverable information in the party's possession, custody or control. With respect to preservation of ESI, the parties agree as follows:

         1. Absent a showing of good cause by the requesting party, the parties shall not be required to modify the procedures used by them in the ordinary course of business to back-up and archive data; provided, however, that the parties shall preserve all discoverable ESI in their possession, custody or control.

         2. Absent a showing of good cause by the requesting party, the following categories of ESI need not be preserved:

a. Deleted, slack, fragmented, or other data only accessible by forensics.
b. Random access memory (RAM), temporary files, or other ephemeral data that are difficult to preserve without ...

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