United States of America et al v. Belle Fourche Pipeline Company

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UNITED STATES DISTRICT COURT
DISTRICT OF NORTH DAKOTA
WESTERN DIVISION
UNITED STATES OF AMERICA,
and STATE OF NORTH DAKOTA,
Plaintiffs,
v.
BELLE FOURCHE PIPELINE
COMPANY,
Defendant.
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Civil No: 1:22-cv-00089-DLH-CRH
ORDER AND INITIAL STIPULATION REGARDING
DISCOVERY PROCEDURE
WHEREAS, Rule 26(f) of the Federal Rules of Civil Procedure states that the
Parties must develop a proposed discovery plan that states the Parties’ views and
proposals on, among other things, “any issues about disclosure, discovery, or
preservation of electronically stored information, including the form or forms in
which it should be produced,” Fed. R. Civ. P. 26(f)(3)(C);
WHEREAS, the Parties mutually seek to reduce the time, expense and other
burdens of discovery of certain electronically stored information (“ESI”) and
privileged materials, as described further below, and to better define the scope of
their obligations with respect to preserving such information and materials;
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WHEREAS, the Parties have agreed to certain measures to streamline
discovery 	procedures 	and 	are 	continuing 	to 	negotiate 	additional 	stipulations
regarding discovery matters, which they hope to include in a supplemental or
amended stipulation regarding discovery procedure;
WHEREAS, the Parties therefore are entering into this Stipulation with the
request that the Court enter it as an Order;
NOW THEREFORE, it is hereby STIPULATED and ORDERED:
A. 	502(d) Order.
1. 	This Order invokes Rule 16(b) of the Federal Rules of Civil Procedure,
as well as the protections afforded by Rule 502(d) of the Federal Rules of Evidence.
Accordingly, the provisions in Rule 502(b) do not apply to the disclosure of
communications or information in discovery in this matter.
2. 	The prosecution and defense of this action will require each Party to
review and to disclose large quantities of information and documents, including
electronically stored information, through the discovery process. As a result, page-
by-page preproduction privilege review would likely impose an undue burden on the
Parties’ resources.
3. 	Each party is entitled to decide the appropriate degree of care to
exercise in reviewing materials for privilege, taking into account the volume and
sensitivity of the materials, the demands of the litigation, and the resources that the
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party can make available. Irrespective of the care that is actually exercised in
reviewing materials for privilege, the Court hereby orders pursuant to Rule 502(d)
of the Federal Rules of Evidence that disclosure of privileged or protected
information or documents in connection with this litigation will not constitute or be
deemed a waiver or forfeiture—in this or any other federal or state proceeding,
whether judicial, arbitral, or administrative—of any claims of attorney-client
privilege or work product protection that the disclosing Party would otherwise be
entitled to assert with respect to the information or documents and their subject
matter.
4. 	The Court further orders that because expedited or truncated privilege
review is likely necessary for the just, speedy, and inexpensive resolution of this
matter, the disclosure of privileged or protected information or documents in
discovery conducted in this litigation will be deemed unintentional, inadvertent, and
compelled by order of this Court. Such disclosure will not constitute a waiver of the
disclosing party’s right to claim any privilege or protection, including without
limitation the deliberative process privilege, that would have applied to the
information or documents or their subject matter but for the disclosure, provided
only that the party disclaiming waiver employed procedures reasonably designed to
screen out privileged materials.
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5. 	Regardless of whether the procedures to screen out privileged materials
were reasonable, the Parties shall not argue, in this forum or any other, that any
privileges were waived as a result of disclosures in this litigation.
6. 	If a Party determines that it has produced a document upon which it
wishes to make a claim of privilege, the producing Party shall, within 14 days of
making such a determination, give all counsel of record written notice of the claim
of privilege. 	The notice must identify each such document and the date it was
produced. 	If the producing Party claims that only a portion of a document is
privileged, the producing Party shall provide, along with the notice of the claim of
privilege, a new copy of the document with the allegedly privileged portions
redacted. Any party that complies with this paragraph will be deemed to have taken
reasonable steps to rectify disclosures of privileged or protected information or
materials.
7. 	If a Party identifies a document that appears on its face or in light of
facts known to the Party to be subject to another Party’s claim of privilege, the Party
identifying the potential claim of privilege is under a good-faith obligation to notify
the Party holding the potential claim of privilege. Such notification will not waive
the identifying Party’s ability to subsequently challenge any assertion of privilege
with respect to the identified document. If the Party holding the potential claim of
privilege wishes to assert a claim of privilege, it shall provide notice in accordance
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with Paragraph 6 above within five business days of receiving notice from the
identifying Party.
8. 	Upon receiving notice of a claim of privilege on a produced document,
the receiving Party shall, in accordance with Fed. R. Civ. P. 26(b)(5)(B), promptly
sequester the specified information and any copies it has and shall not use or disclose
the information, except as provided by Fed. R. Civ. P. 26(b)(5)(B), until the claim is
resolved. Copies of privileged documents or information that have been stored on
electronic media that is not reasonably accessible, such as disaster recovery backup
media, are adequately sequestered as long as they are not restored; if such data is
restored, the receiving Party shall take steps to re-sequester the restored information.
If the receiving Party disclosed the information before being notified, it shall take
reasonable steps to prevent further use of such information until the claim is
resolved.
9. 	Notwithstanding the duties under Rule 26(b)(5)(B), absent an order
expressly stating otherwise, a party may make derivative use of, and may pursue
leads suggested by, any inadvertently produced privileged information known to the
party before duty arose to return, sequester, or destroy the privileged information.
The receipt of inadvertently disclosed privileged information shall not be the basis
for disqualifying counsel from this action absent a showing of bad faith in receiving
the information.
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10. 	If a Party wishes to dispute a claim of privilege asserted under this
Order, such Party shall, within 14 days after receiving notice of the claim of privilege
as to a produced document, move the Court for an order compelling disclosure of
the information. The Party shall follow the procedures described in Fed. R. Civ. P.
26(b)(5)(B) and shall not assert, as a ground for compelling disclosure, the fact or
circumstances of the disclosure. Pending resolution of the motion, the Parties shall
not use the challenged information for any other purpose and shall not disclose it to
any person other than those required by law to be served with a copy of the sealed
motion.
11. 	The Parties may stipulate in writing to extend the time periods specified
above.
12. 	Nothing in this order overrides any attorney’s ethical responsibilities to
refrain from examining or disclosing materials that the attorney knows or reasonably
should know to be privileged and to inform the disclosing party that such materials
have been produced.
13. 	The Party wishing to assert a claim of privilege retains the burden, upon
challenge, of establishing the applicability of the claimed privilege.
14. 	This Order does not preclude a Party from voluntarily waiving any
claims of privilege. The provisions of Rule 502(a) of the Federal Rules of Evidence
apply when a Party uses privileged information to support a claim or defense.
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B. 	Production.
15. 	Procedures for Production: 	Unless stated otherwise in a written
agreement signed by both parties, the following procedures apply to producing
documents or ESI. Nothing in this Order requires previously produced documents,
including, without limitation, documents produced in response to Information
Requests, to be reproduced or produced in a different format or with different or
additional metadata. However, if those previously produced documents were
produced without the metadata contemplated in Appendix A or in a different format
and 	Plaintiff 	believes 	an 	additional 	production 	is 	reasonable 	given 	the
circumstances, the Parties will meet and confer about a reasonable production of the
relevant metadata or documents in a different format. Compliance with these
procedures constitutes compliance with Federal Rule of Civil Procedure 34(b)(2)(E)
for this matter.
(a) 	TIFF Plus Text Productions. Except as stated otherwise below,
ESI being produced by a Party shall be converted to 300 dpi, single-page, black-and-
white (no shades of gray) TIFF images using CCITT Group IV compression. Where
color images are required by this order, the images shall be in the form of .JPG
images. Each page must be branded with a unique Bates number, which must not be
an overlay of the image. Unless otherwise agreed by the Parties, the TIFF images
must be produced on optical media, USB hard drive, or by secure online file transfer,
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accompanied by: (1) an Opticon™ or IPRO® “cross reference file” which associates
each Bates number with its corresponding single-page TIFF image file (or JPG
image file for color images) and extracted text file; (2) a “load file” containing each
of the applicable metadata fields described in Appendix A; and (3) Concordance®
delimited text files containing extracted or OCR text. The load file must contain
Concordance® delimited text that will populate fields in a searchable flat database
environment, containing one line for each document. Nothing in this stipulation
requires a Party to populate a metadata field in Appendix A (other than “Custodian”
and “MD5Hash”) if such fields cannot be extracted from a document.
(b) 	Paper documents.
(1) 	Documents printed on paper that is larger than 11 x 17
inches may, at the Producing Party’s discretion, be produced on paper. Documents
produced on paper must be organized by custodian and maintained in the order in
which they appear in the files of the custodian.
(2) 	Documents printed on paper that is 11 x 17 inches or
smaller must be scanned and produced on CD-ROM, DVD-ROM, or external hard
drive.
(c) 	Word, WordPerfect, and PDF files.
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(1) 	For Word, WordPerfect, and PDF files, the text files must
contain the extracted text from the document, unless the document has been redacted
during privilege review, in which case the text files may contain OCR text.
(2) 	For 	Word, 	WordPerfect, 	and 	PDF 	files 	that 	contain
comments or tracked changes that are not part of the ordinary text, the TIFF images
must be generated based on how the document appears when first opened using view
settings contained in the file. The receiving party has the option, after reviewing the
produced TIFF image, to request the native file.
(d) 	Microsoft PowerPoint files must be processed and produced as
full color, half page, JPEG images with one slide per page. 	Any presenter notes
must appear below each slide.
(e) 	E-mail.
(1) 	If the producing party redacts any part of an e-mail before
producing it, OCR text may be provided in place of extracted text.
(2) 	E-mail attachments must be processed as though they were
separate documents, and the load file must include a field in which the producing
Party identifies, for each e-mail, the Bates range of any attachment;
(f) 	Microsoft Excel files and other spreadsheets must be produced
in native file format in a separate folder on the production media. The load file must
contain a field that identifies the file path of the native file corresponding to each
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document, and the Parties must provide a placeholder TIFF image that shows the
name of the native file and has a Bates number. If an MS Excel or other spreadsheet
file contains privileged text that must be redacted before production, the producing
party will image the redacted spreadsheet showing all non-privileged hidden
columns and provide OCR text for the file.
(g) 	Digital photographs must be produced as full color .JPG image
files at their original resolution with Bates numbers branded onto them.
(h) 	Microsoft OneNote files may be converted to PDF files prior to
processing, review, and production. The Parties need not collect or produce an entire
OneNote notebook if only certain sections or pages in the notebook are responsive.
(i) 	GIS maps that are contained in a folder (with or without
subfolders) may, at the Producing Party’s discretion, be converted to a single ZIP
file that contains all of the contents of that folder, even if the folder contains certain
files types (e.g., JPG images) that would ordinarily be produced using different
procedures pursuant to this Paragraph. The Producing Party must provide a
placeholder TIFF image that shows the name of the ZIP file and has a Bates number.
After production of the ZIP file, the receiving party may initiate a meet and confer
about whether any files contained with the ZIP file should be produced as separate
documents with their own Bates numbers.
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(j) 	With respect to any other kinds of electronic data, including data
from databases, CAD drawings, GIS data, videos, etc., the Producing Party may
produce the ESI in native format or a reasonably usable form, or may initiate a meet-
and-confer to determine a reasonably useable form for the production. If the file is
not one of the types described above, the Producing Party must provide a placeholder
TIFF image that shows the name of the file and has a Bates number. If the Parties
have not agreed on a production format for the ESI prior to the production, then Rule
34(b)(2)(E)(iii) shall not apply to the production.
16. 	The receiving party has the option, after reviewing a black-and-white
TIFF image, to enquire whether the original document contained color and, if so, to
request color .JPG images.
17. 	Except 	as 	stated 	above, 	a 	Party 	need 	not 	produce 	the 	same
electronically stored information in more than one form.
C. 	Expert Discovery.
18. 	Each Party shall not pursue through discovery, trial subpoena or
otherwise:
(a) 	Notes taken by a witness required to provide a report under Fed.
R. Civ. P. 26(a)(2)(B);
(b) 	Communications between a witness required to provide a report
under Fed. R. Civ. P. 26(a)(2)(B) and a Party’s representative—including, but not
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limited to, another witness required to provide a report under Fed. R. Civ. P.
26(a)(2)(B)—regardless of the form of the communications, except to the extent that
the communications:
(1) 	Relate to compensation for an expert’s study or testimony;
(2) 	Identify facts or data that a Party provided and that the
expert considered in forming the opinions to be expressed; or
(3) 	Identify assumptions that a Party provided and that the
expert relied upon in forming the opinions to be expressed.
19. 	Expert Depositions.
(a) 	Notwithstanding Fed. R. Civ. P. 26(b)(4)(E), the Parties shall
bear the costs of their own testifying experts in responding to discovery, and shall
not require the Party seeking discovery to pay the other Party’s testifying expert any
fee for the time spent in responding to discovery.
20. 	Expert Productions.
(a) 	Documents “considered” by expert for the purposes of Fed. R.
Civ. P. 26(a)(2)(B)(ii) means those documents that have been received, read,
reviewed, or created by the expert for the purposes of forming the opinions set forth
in the expert’s report but only if the expert actually relies upon them in forming his
or her opinion.
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(b) 	Documents “considered” by a witness required to provide a
report under Fed. R. Civ. P. 26(a)(2)(B) shall be produced within seven days after
producing the witness’s report. Such documents shall be produced in accordance
with the requirements of this order, except that the Parties shall identify which
witness(es) considered each document either in the load file produced along with the
documents or in the witness’ report. However, the Parties do not need to produce:
(1) copies of documents that were previously produced in this matter, provided that
the Party identifies the documents by Bates number before the expiration of the
seven-day period described in this subparagraph; (2) copies of documents considered
by experts that are publicly available (e.g., published materials one might find in a
library), unless it would be less burdensome for the producing party to obtain a copy
than it would be for the receiving party, and the receiving party requests a copy after
receiving the expert report. All such requests shall be fulfilled within 10 days.
(c) 	Notwithstanding the provision of Fed. R. Civ. P. 26(a)(2)(B)(iii),
the experts’ disclosures under Rule 26(a)(2) need not include demonstrative exhibits
the expert may use at trial, provided that the facts and data supporting such trial
demonstrative exhibits have been disclosed in the experts’ report or in the documents
considered by that witness. Each party agrees to provide the other parties with copies
of any demonstrative exhibits before they are used at trial. The parties will seek to
reach agreement on how long before trial demonstrative exhibits must be exchanged.
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If the parties are unable to reach agreement, one or more parties may ask the Court
to set a deadline for exchanging copies of demonstrative exhibits.
SO ORDERED this 29th day of August, 2022.
/s/ Clare R. Hochhalter
Clare R. Hochhalter, Magistrate Judge
United States District Court
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APPENDIX A
1 	Bates Beg 	The beginning Bates number to a document.
2 	Bates End 	The ending Bates number to a document.
3 	Bates Beg Attach 	The beginning Bates number to an attachment group.
4 	Bates End Attach 	The ending Bates number to an attachment group.
5 	Author 	The document author.
6 	Custodian 	The individual or entity who is in possession, custody or control of
documents and/or data.
7 	Email From 	The name/email who sent the specific email message.
8 	Email To 	The recipients of an email.
9 	Email CC 	Carbon Copy recipients of an email.
10 	Email BCC 	Blind Carbon Copy recipients of an email.
11 	Email Subject 	Subject of email or electronic document.
12 	File Name 	The name of the file.
13 	File Size 	The size of the specified file.
14 	Document
Extension
The two-, three-, or four-letter extension that identifies the
application that created the document.
15 	Date Created 	The application record date the file was created. The Parties
reserve the right to argue that automatically extracted “date
created” metadata is inaccurate for a given production.
16 	Date Last
Modified
The application record date the file was last modified. The Parties
reserve the right to argue that automatically extracted “date last
modified” metadata is inaccurate for a given production.
17 	Date Sent 	The date captured by mail client when email was sent.
18 	Date Received 	The date captured by mail client when email was received.
19 	Time Created 	The application record time the file was created. Any party may
elect to produce this metadata in one field with the “date created”
metadata.
20 	Time Last
Modified
The application record time the file was last modified. Any party
may elect to produce this metadata in one field with the “date last
modified” metadata.
21 	Time Sent 	The time captured by mail client when email was sent. Any party
may elect to produce this metadata in one field with the “date
sent” metadata.
22 	Time Received 	The time captured by mail client when email was received. Any
party may elect to produce this metadata in one field with the
“date received” metadata.
23 	MD5 Hash 	The MD5 hash value for the document.
24 	Confidential
Stamp
The confidential designation stamped on a document.
25 	Text Precedence 	The path that links an extracted text file to a Bates numbered
document.
26 	FILE_PATH 	Link to the native file for a Bates numbered document.
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