Bell et al v. 3M Company, The et alMOTION for Discovery of Documents and Electronically Stored InformationD. Colo.October 19, 2017UNITED STATES DISTRICT COURT DISTRICT OF COLORADO Case No. 1:16-cv-02351-RBJ (Consolidated) GREGORY BELL; JOSE ACEVEDO; and DENISE DURBIN, individually and as parent and next friend of K.D. and B.D.; for themselves and on behalf of all others similarly situated, Plaintiffs, v. THE 3M COMPANY (f/k/a Minnesota Mining and Manufacturing Co.); and TYCO FIRE PRODUCTS, L.P., successor-in-the interest to The Ansul Company, Defendants. DEFENDANTS’ MOTION FOR ENTRY OF ORDER REGARDING DISCOVERY OF DOCUMENTS AND ELECTRONICALLY STORED INFORMATION Defendants respectfully submit this Motion for Entry of the attached Order1 Regarding Discovery of Documents and Electronically Stored Information (“Proposed ESI Order”). Certification of Conferral In accordance with D.C.COLO.LCivR 7.1(a) and this Court’s Practice Standards, counsel for Defendants conferred in good faith with counsel for Plaintiffs by telephone on multiple occasions to attempt to arrive at a mutually-agreed order governing discovery of documents and electronically stored information. Numerous issues of dispute remain. Counsel for Defendants 1 Attached as Exhibit A is a clean copy of Defendant’s proposed ESI protocol. Attached as Exhibit B, in an effort to clarify the limited areas of disagreement, is a redline copy showing only the differences between Defendants’ proposal (in redline) and Plaintiffs’ proposal (as of the last version of Plaintiffs’ proposal that was received by Defendants at 8:22 AM on October 19, 2017). Case 1:16-cv-02351-RBJ Document 101 Filed 10/19/17 USDC Colorado Page 1 of 10 2 conferred with counsel for Plaintiffs on October 12, October 17, and October 19 regarding the Proposed ESI Order attached hereto2, and were informed that Plaintiffs’ counsel opposes this form of ESI Order and that Plaintiffs intend to submit a competing draft order for the Court’s consideration. Counsel for Plaintiffs sent Counsel for Defendants a redline version of the Proposed ESI Order attached hereto on October 19, the day the parties’ joint submission to the Court was due. Defendants thus reserve the right to address any new proposed changes by Plaintiffs included in the October 19 redline or the version submitted by Plaintiffs to the Court in any future briefing, telephonic hearing, or other proceedings as ordered by the Court. Defendants’ Proposed ESI Order The parties agree on the majority of the Proposed ESI Order attached hereto, but areas of disagreement remain. Defendants’ proposed language, if and where Defendants are aware that it differs from Plaintiffs’, is shown as the redline in the attached Proposed ESI Order. Generally, Plaintiffs’ proposal seeks to impose discovery obligations which are unduly burdensome and not proportional to the issues in the action. Such obligations do not meet the requirements of Fed. R. Civ. Pro. 26(b)(1) and would force Defendants to incur substantial discovery costs. See Fed. R. Civ. P. 26(b)(1) (parties may obtain discovery that is “proportional to the needs of the case,” considering, among other factors, “whether the burden or expense of the proposed discovery outweighs the likely benefit”); see also Witt v. GC Servs. Ltd. P’ship, 307 F.R.D. 554, 559 (D. Colo. 2014) (“A party does not have an unfettered or absolute right to 2 Defendants note that despite Plaintiffs’ demands for production of documents per their specified formats, as discussed in this Motion, Plaintiffs refused in conferrals with Defendants to consider cost-sharing options or divergence from the protocol where the actual costs and burden is not proportional to the need for the specific information or formats. Case 1:16-cv-02351-RBJ Document 101 Filed 10/19/17 USDC Colorado Page 2 of 10 3 conduct discovery.”); Church Mut. Ins. Co. v. Phillip Marshall Coutu, 17-CV-00209-RM-NYW, 2017 WL 4236318, at *5 (D. Colo. Sept. 25, 2017) (“The applicable test is whether the evidence sought is relevant to any party’s claim or defense, and proportional to the needs of the case.”). Defendants, on the other hand, seek reasonable limitations on the scope of electronic discovery in this action. More specifically, the parties’ major areas of dispute are as follows: 1. Voicemails: Plaintiffs propose that the parties be required to produce any and all relevant voicemails. Defendants’ position is that requiring the parties to listen to each voicemail message possessed by every custodian to determine its relevance would be unduly burdensome and disproportionate to the needs of the case – particularly for Defendants, which are companies with hundreds if not thousands of employees who regularly conduct business by phone. Defendants should be required to collect, review, and produce voicemails only if they are electronically indexed or otherwise known to be relevant to the claims or defenses in this Action. 2. Production of Hidden Text: In Section E(2), Document Image Format, Plaintiffs attempt to require Defendants to produce all hidden text in separate and new Word documents. On the other hand, Defendants propose to produce the documents “as is.” That is, if the custodian last-saved the document with hidden text displayed, the document image will be produced with hidden text displayed; if the custodian last-saved the document without hidden text displayed, the document image will not reflect the hidden text. Defendants seek to limit this requirement and not make such a production “if doing so would alter the state of the Document or its metadata as last saved by the custodian.” This maintains the true nature of the document as used by the custodian. Furthermore, Defendants seek this limitation in part because this is how Case 1:16-cv-02351-RBJ Document 101 Filed 10/19/17 USDC Colorado Page 3 of 10 4 thousands of potentially responsive Word documents were collected and processed for potential review and production. It would be unduly burdensome to recollect and reprocess documents already included in a review database. Further, the evidentiary value of such a production is limited. Plaintiffs want to require Defendants to create a new Word document image for each impacted document that did not previously exist. Pursuant to the metadata production requirements, Defendants will already be producing metadata where available indicating whether a produced document has track changes turned on. Defendants are willing to work with Plaintiffs on a case-by-case basis to provide any hidden text for a particular document if Plaintiffs reasonably make such a request. 3. De-Duplication: Plaintiffs have proposed that the parties be required to globally de-duplicate documents (i.e. identify and remove duplicates from their productions) across all document sources. But at the same time, they ask that duplicates be produced if they appear in multiple custodians’ files and that Defendants populate metadata fields to identify those multiple custodians and any duplicate custodians. During meet and confers, Plaintiffs’ counsel could not clearly explain the need for these contradictory positions. Plaintiffs’ proposal on de-duplication is not only unduly burdensome, but Defendants simply cannot comply with it as written, based on the technological capabilities of the document storage and review systems Defendants are using for this Action. Each Defendant should be entitled to de-duplicate or not de-duplicate its document production as required by its unique circumstances. 4. Document Unitization: Plaintiffs have proposed a protocol for the scanning and “unitization” of documents maintained in the ordinary course of business in hard copy format. Today, the day of the parties’ submission, was the first day Plaintiffs even addressed this Case 1:16-cv-02351-RBJ Document 101 Filed 10/19/17 USDC Colorado Page 4 of 10 5 protocol during any meet and confer. Plaintiffs’ proposed protocol may be unreasonable and unduly burdensome for certain of Defendants’ hard copy documents, based on how and where such documents are stored, collected, and scanned. Moreover, in some cases, the protocol proposed by Plaintiffs may be inconsistent with the way Defendants have been collecting and scanning potentially relevant hard copy materials since this Action began, in preparation for responding to other parties’ discovery requests; complying with Plaintiffs’ proposed “document unitization” protocol could require Defendants to re-scan thousands or more pages of documents that have already been scanned, at great burden and expense to Defendants. Defendants should be permitted to make any production of hard copy documents in a reasonably usable format, consistent with the Federal Rules. 5. Production of Objective Coding: Plaintiffs propose that Defendants be required to produce “objective coding” information for documents maintained in the ordinary course of business as hard copy documents. By definition, hard copy documents do not have any metadata. Defendants are not opposed to producing certain fields listed in Attachment A for hard copy documents – such as Bates number – that can be extracted and populated by an automated technological process (e.g., a script process to populate fields based on readily available objective information), if the process does not impose an unreasonable cost or burden on the Producing Party; does not require a person to code or populate such fields manually or on a document-by-document basis; were collected, for documents that have been collected as of the date of this Order, or are available at the time of collection and processing, for documents that are collected after the date of this Order; and are not protected from disclosure by attorney-client privilege or work-product immunity or otherwise prohibited from disclosure by law or Case 1:16-cv-02351-RBJ Document 101 Filed 10/19/17 USDC Colorado Page 5 of 10 6 regulation. But any coding prepared by or under the supervision of counsel for the parties inherently constitutes or reflects attorney work product and therefore should not be required to be produced; and requiring Defendants to populate dozens of fields for hard copy documents on a document-by-document or manual basis would be unduly burdensome. 6. Production of Metadata: Plaintiffs contend that the parties should be obligated to collect the metadata fields contained in Attachment A regardless of when the documents were collected, loaded, and/or processed. This position overlooks the reality of this action— Defendant 3M Company, for example, began collecting, loading, and processing documents in other litigation involving PFCs over fifteen years ago. Based on how 3M’s documents were processed at the point in time they were collected, 3M did not populate several of the metadata fields included in Attachment A. Thus, requiring the parties to populate all metadata fields included in Attachment A would require Defendant 3M Company to reprocess millions of documents3, a requirement that is unduly burdensome and not proportional to the needs of the case. Defendants’ position is that the parties should be required to populate only the metadata fields that were processed at the time the document was collected (for all documents collected prior to the date of the ESI Order). 7. Optical Character Recognition (OCR): Plaintiffs propose that all documents produced by Defendants must be subjected to Optical Character Recognition (“OCR”) regardless of whether the Defendant used that electronic process to conduct its review. Defendants propose that if a Defendant performed OCR on a given document as part of its processing or review of documents, then the document should be produced with the OCR capabilities 3 Defendants can provide further evidence of this burden in the form of affidavit submissions, if the Court prefers. Case 1:16-cv-02351-RBJ Document 101 Filed 10/19/17 USDC Colorado Page 6 of 10 7 included. However, for many documents, including older documents and handwritten documents, the OCR capabilities cannot produce an accurate rendering of the document’s content and therefore an over-reliance on OCR can result in potentially responsive documents not being produced. For some of these documents, it may be more efficient for the parties to review the document in its original format to determine if it is responsive. In those cases, OCR would not be usually performed on those documents. Defendants propose that documents that have been processed with OCR be produced with the OCR intact. However, documents that were reviewed manually, should be produced in that same format. Defendants should not be required to incur the cost of processing a document with OCR solely to benefit the Plaintiffs. 8. Prior Productions: Plaintiffs and Defendants do not agree on obligations with respect to documents reproduced from separate actions. Defendants’ position is that, should a party request documents produced in other litigations, the Producing Party should be able to produce documents reproduced from separate actions in the format used in the separate action, including metadata. Producing reproduced documents in the prior format is both time and cost efficient and relieves the parties of potentially significant burdens of having to reprocess these documents. Further, requiring the parties to produce the reproduced documents with additional metadata or in a different format imposes an affirmative obligation on the parties that is both unduly burdensome and not proportional to the needs of the case. Case 1:16-cv-02351-RBJ Document 101 Filed 10/19/17 USDC Colorado Page 7 of 10 8 Conclusion For these reasons, the Court should enter the proposed ESI Order submitted here by Defendants, or, alternatively, set a telephonic discovery dispute hearing on this matter.4 If the Court prefers, Defendants will submit additional briefing on this issue to substantively address the remaining disagreements between the parties. 4 At the August 24, 2017 Scheduling Conference, the Court indicated that it was considering appointing a Special Master to handle discovery disputes in this case. Defendants do not oppose appointment of a Special Master to determine this ESI Order issue. Case 1:16-cv-02351-RBJ Document 101 Filed 10/19/17 USDC Colorado Page 8 of 10 9 Dated: October 19, 2017 Respectfully submitted, s/ Heather Perkins Heather Carson Perkins Kellen N. Wittkop Christopher H. Dolan Faegre Baker Daniels LLP 3200 Wells Fargo Center 1700 Lincoln Street Denver, CO 80203 Email: heather.perkins@FaegreBD.com William A. Brewer, III Stephanie L. Gase Brewer, Attorneys & Counselors 1717 Main Street, Suite 5900 Dallas, TX 75201 Email: wab@brewerattorneys.com szg@brewerattorneys.com Brewer Attorneys and Counselors Beth A. Landes 750 Lexington Avenue, 14th Floor New York, NY 10022 Email: bal@brewerattorneys.com Attorneys for Defendant 3M Company s/ S. Kirk Ingebretsen S. Kirk Ingebretsen Paul A. Williams Daniel E. Rohner Shook, Hardy & Bacon L.L.P. 1660 17th Street, Suite 450 Denver, CO 80202 Email: kingebretsen@shb.com Mark S. Cheffo Douglas E. Fleming, III David Weinraub Katherine A. Armstrong Quinn Emanuel Urquhart & Sullivan LLP 51 Madison Ave. New York, NY 10010 Email: sheilabirnbaum@quinnemanuel.com markcheffo@quinnemanuel.com douglasfleming@quinnemanuel.com davidweinraub@quinnemanuel.com Attorneys for Defendant Ansul Company, Tyco Fire Products LP, and Chemguard s/ Keith E. Smith Keith E. Smith Albert G. Bixler Eckert, Seamans, Cherin & Mellott, LLC 50 S. 16th Street, 22nd Floor Philadelphia, PA 19102 Email: ksmith@eckertseamans.com Ronald M. Eddy Peter Koclanes Sherman & Howard, LLC 633 17th Street, Suite 3000 Denver, CO 80202-3622 Email: reddy@shermanhoward.com pkoclanes@shermanhoward.com Attorneys for Defendant National Foam, Inc. s/ Michael L. Carpenter Michael L. Carpenter Gray Layton Kersh Solomon Furr & Smith PA 516 S. New Hope Rd. Gastonia, NC 28052 Email: mcarpenter@gastonlegal.com Todd R. Seelman Ronald L. Hellbusch Joseph A. Salazar, Jr. Jesse D. Rodgers Lewis Brisbois Bisgaard & Smith LLP 1700 Lincoln St., Suite 4000 Denver, CO 80203 Email: Todd.Seelman@lewisbrisbois.com Ronald.Hellbusch@lewisbrisbois.com Joe.Salazar@lewisbrisbois.com Jesse.Rodgers@lewisbrisbois.com Attorneys for Defendant Buckeye Fire Protection Co. Case 1:16-cv-02351-RBJ Document 101 Filed 10/19/17 USDC Colorado Page 9 of 10 10 CERTIFICATE OF SERVICE I certify that on this 19th day of October, 2017, I electronically filed the foregoing DEFENDANTS’ MOTION FOR ENTRY OF ORDER REGARDING DISCOVERY OF DOCUMENTS AND ELECTRONICALLY STORED INFORMATION with the Court using the CM/ECF system, and served same via the CM/ECF system upon the following: David P. Hersh Seth A. Katz Meghan C. Quinlivan Burg Simpson Eldredge Hersh & Jardine, P.C. E-mail: dhersh@burgsimpson.com skatz@burgsimpson.com mquinlivan@burgsimpson.com Hunter Shkolnik Paul J. Napoli Louise Caro Patrick J. Lanciotti Napoli Shkolnik, P.L.L.C. E-mail: hunter@napolilaw.com pnapoli@napolilaw.com lcaro@napolilaw.com planciotti@napolilaw.com Lead Counsel for the Punitive Classes S. Kirk Ingebretsen Paul A. Williams Daniel E. Rohner Shook Hardy & Bacon L.L.P. Email: kingebretsen@shb.com drohner@shb.com pwilliams@shb.com Douglas E. Fleming , III Katherine A. Armstrong Mark S. Cheffo David S. Weinraub Quinn Emanuel Urquhart & Sullivan, LLP Email: douglasfleming@quinnemanuel.com katherinearmstrong@quinnemanuel.com markcheffo@quinnemanuel.com davidweinraub@quinnemanuel.com Attorneys for Defendant Ansul, Incorporated Joseph A. Salazar, Jr. Ronald L. Hellbusch Jesse D. Rodgers Todd R. Seelman Lewis Brisbois Bisgaard & Smith, LLP Email: joe.salazar@lewisbrisbois.com ronald.hellbusch@lewisbrisbois.com jesse.rodgers@lewisbrisbois.com todd.seelman@lewisbrisbois.com Michael L. Carpenter Gray, Layton, Kersh, Solomon, Furr & Smith P.A. Email: mcarpenter@gastonlegal.com Attorneys for Defendant Buckeye Fire Protection Co. Albert G. Bixler Keith E. Smith Eckert Seamans Cherin & Mellott, LLC Email: abixler@eckertseamans.com ksmith@eckertseamans.com Ronald M. Eddy Peter G. Koclanes Sherman & Howard, L.L.C. Email: reddy@shermanhoward.com pkoclanes@shermanhoward.com Attorneys for Consol Defendant National Foam Michael McDivitt Anthony D. Tracey McDivitt Law Firm E-mail: mmcdivitt@mcdivittlaw.com ttracy@mcdivittlaw.com Attorneys for Plaintiffs and the Putative Classes Kevin S. Hannon Hannon Law Firm, LLC 1641 Downing Street Denver, CO 80218 Email: khannon@hannonlaw.com Attorneys for Plaintiffs s/ Nanette Quarnberg , Legal Administrative Assistant Case 1:16-cv-02351-RBJ Document 101 Filed 10/19/17 USDC Colorado Page 10 of 10