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Olberg v. Allstate Insurance Co.

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

November 12, 2019

JEFF OLBERG, an individual et al., Plaintiffs,
v.
ALLSTATE INSURANCE COMPANY, an Illinois corporation et al., Defendants.

          ORDER

          JOHN C. COUGHENOUR, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on the parties' stipulated agreement regarding discovery of electronically stored information (“ESI”) (Dkt. No. 80). The parties hereby stipulate that:

         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 Federal Rule of Civil Procedure 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 ESI and related responses should be reasonably targeted, clear, and as specific as possible.

         3. All disclosures and productions made pursuant to this agreement are also subject to all other orders entered by this Court for this litigation. Nothing in this protocol shall limit a party's right to seek or object to discovery as set out in applicable rules or to object to the authenticity or admissibility of any information produced in accordance with this agreement.

         4. The parties and their attorneys do not intend by this agreement to waive their rights to the production, discoverability, confidentiality, attorney-client privilege, or attorney-work product protection as to any information addressed in this agreement. All parties preserve their attorney-client privileges, work product protections, and other relevant privileges, and there is no intent by the agreement or the production of information pursuant to the agreement to in any way waive or weaken these privileges. Nothing in this agreement addresses, limits, or determines the relevance, discoverability, or admission into evidence of any information. This agreement is not deemed to be a waiver by any party of the right to challenge the Court's jurisdiction over this litigation or to seek to enforce any arbitration agreement.

         5. The parties agree to make a reasonable and good faith effort to come to an agreement regarding the production of “Claims Data Systems, ” which means all the internal databases or systems Allstate uses to track, document, process, value, keep record of, pay, analyze for risk or business purposes, and otherwise manage claims made by Allstate's insureds, individually or in the aggregate.

         6. This agreement is effective on a going forward basis, and shall not have any retroactive applicability. Productions made and privilege logs served as of the date of filing of this stipulation need not be reproduced and re-served to be in accord with this agreement.

         B. ESI Disclosures

         Within 30 days after the Local Civil Rule 26(f) conference, or at a later time if agreed to by the parties, each party shall disclose:

         1. Custodians.

a. Plaintiffs will provide a list of up to four custodians for each named Plaintiff, Allstate a list of up to 15 custodians, and CCC a list of up to eight 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 (including responsibilities and years of service when applicable), and the type of the information under his/her control.
b. No later than two months prior to the close of fact discovery, Plaintiffs or CCC may request from each other additional custodians who are likely to have discoverable ESI in their possession, custody, or control. Such requests must be made in good faith. Plaintiffs and CCC shall meet and confer regarding any disputes over additional custodians pursuant to this paragraph. Any disputes over additional custodians remaining after meet and confer shall be presented to the Court in accordance with Local Civil Rule 37(a)(2).

         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 such source, the producing party shall make a good faith effort to provide a description of the services provided/data contained on the system within their knowledge and 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 reasonably accessible under Federal Rule of Civil Procedure 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 receiving 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 make all reasonable and proportional efforts to preserve discoverable ESI in their possession, custody, or control.

         2. All parties shall supplement their disclosures in accordance with Rule 26(e) with discoverable ESI responsive to a particular discovery request or mandatory disclosure where that data is created after a disclosure or response is made (unless excluded under (C)(3) or (D)(1)-(2) below).

         3. Absent a showing of good cause by the receiving party, the following categories of ESI need not be preserved and are ...


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