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Court Enters Detailed Agreed Order Regarding Preservation of ESI, Documents and Other Tangible Items

Posted in CASE SUMMARIES

In re Genetically Modified Rice Litig., 2007 WL 1655757 (E.D. Mo. June 5, 2007)

This order constitutes the parties’ Agreed Order Regarding Preservation of Communications, Documents, Electronic Data, and Other Tangible Items, intended to govern the parties’ preservation efforts in these consolidated MDL proceedings.  The Agreed Order contains two parts: a lengthy definitional section and a section setting out specific preservation obligations.  The latter section provides that the preservation obligations set forth in the Order apply to currently-existing evidence within the parties’ possession, custody, or control, as well as evidence "generated, produced, or otherwise created in the future during the pendency of this Action until an agreement can be reached among the Parties regarding a cutoff date.”  It further provides:  “Notwithstanding any other provision of this Order, persons may generate business documents without preserving dictation, drafts, interim versions or other temporary compilations of information if such documents would not have been preserved in the ordinary course of business.” 

The Agreed Order further provides:

The Parties must take reasonable steps to preserve all Communications and Documents in their original condition and Electronic Data in its native format.  Such steps include, without limitation:

(1) Taking reasonable steps to identify all Custodians;

(2) Directing all Custodians and appropriate IT personnel to preserve Potentially Relevant Information (this obligation does not require the Parties provide a copy of this order to Custodians so long as reasonable steps are taken to inform Custodians of the substantive provisions of this Order, as well as their individual obligations thereunder);

(3) Taking reasonable steps to preserve the oldest known complete backup of Active Files reasonably expected to contain information within the scope of this Order on servers (once this obligation is satisfied, Parties may continue to engage in the routine rotation of backup tapes going forward);

(4) Taking reasonable steps to cease all nonroutine defragmentation, compression, purging, or reformatting of digital media that may contain Electronic Data that may be subject to discovery until all Active Files containing information within the scope of this Order have been copied;

(5) Taking reasonable steps to suspend routine document preservation or retention Policies that may lead to the destruction of information within the scope of this Order;

(6) Taking reasonable steps to promptly collect and preserve in their current state all Active Files from Electronic Data sources that contain data that is within the scope of this Order.  For all Custodians, a complete backup will be made of all Active Files from their current Computer without altering metadata.  In addition, a complete backup will be made of all Active Files that contain information within the scope of this Order identified by Custodians that reside on any servers without altering metadata;

(7) Taking reasonable steps to promptly collect any transcripts or text files reflecting the contents of any voicemail systems, telephone conversation recording devices, and other voice recording systems that may exist; and

(8) Taking reasonable steps to preserve all security keys, encryption/decryption information, and Policies that exist or are related to any data contemplated by this Order for the sole purpose of accessing the data.  The Parties shall take reasonable steps to ensure that Communications, Documents, Electronic Data and other tangible objects that are subject to this Order are not destroyed, removed, mutilated, altered, concealed, deleted or otherwise disposed of.  However, any party may delete or recycle Active Files electronically stored on servers or hard drives reasonably likely to contain Documents after the party has made and secured a copy of the Active Files which contain information within the scope of this Order contained on said data storage device.  A party need not preserve information electronically stored on servers, hard drives, or similar locations not reasonably likely to contain information within the scope of this Order.