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UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

HIRAMBO INC. 

 Plaintiff/Counter-Defendant, 

v. 

LOGIC SOLUTIONS, INC. 

 Defendant/Counter-Plaintiff. 

Case No. 14-14236 

Hon. Robert H. Cleland 

Mag. Judge David R. Grand 

David Szostek (P78171) 

Edward Allen Law, PLLC 

Attorney for Plaintiff/CounterDefendant 

2010 44th St. S.E. 

Grand Rapids, MI 49508 

(616) 226-8002 

dave@edwardallenlaw.com

Catherine T. Dobrowitsky (P63245) 

Rivenoak Law Group, P.C. 

Attorneys for Defendant/CounterPlaintiff 

101 W. Big Beaver Rd., Ste. 1400 

Troy, MI 48084 

(248) 677-1045 

ecf@rivenoaklaw.com 

ORDER RELATING TO THE DISCOVERY OF ELECTRONICALLY STORED 

INFORMATION 

1.01 Purpose 

The purpose of these Principles is to assist courts in the administration of 

Federal Rule of Civil Procedure 1, to secure the just, speedy, and inexpensive 

determination of every civil case, and to promote, whenever possible, the early 

resolution of disputes regarding the discovery of electronically stored information 

(“ESI”) without Court intervention. Understanding of the feasibility, 

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reasonableness, costs, and benefits of various aspects of electronic discovery will 

inevitably evolve as judges, attorneys, and parties to litigation gain more 

experience with ESI and as technology advances. 

1.02 Cooperation 

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. 

1.03 Discovery Proportionality 

The proportionality standard set forth in Fed. R. Civ. P. 26(b)(2)(C) should 

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 

practicable. Where the discovery request is potentially burdensome to the 

responding party, the parties should consider options such as staging discovery and 

sampling, in an attempt to reduce the costs of production. If the discovery request 

seeks marginally relevant information, the requesting party should expect some 

cost shifting to be imposed by the Court in the absence of an agreement between 

the parties. 

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2.01Duty to Meet and Confer on Discovery and to Identify Disputes for Early 

Resolution 

(a) Prior to the initial status conference with the Court, counsel shall 

meet and discuss the application of the discovery process set forth in the Federal 

Rules of Civil Procedure and these Principles to their specific case. Among the 

issues to be discussed are: 

(1) the identification of relevant and discoverable ESI and 

documents, including methods for identifying an initial subset of 

sources of ESI and documents that are most likely to contain the 

relevant and discoverable information as well as methodologies or 

culling the relevant and discoverable ESI and documents from that 

initial subset; 

(2) the scope of discoverable ESI and documents to be preserved 

by the parties; 

(3) the formats for preservation and production of ESI and 

documents; 

(4) the potential for conducting discovery in phases or stages as a 

method for reducing costs and burden; and 

(5) the potential need for a protective order and any procedures to 

which the parties might agree for handling inadvertent production of 

privileged information and other privilege waiver issues pursuant to 

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Rule 502(d) or (e) of the Federal Rules of Evidence. 

(b) Disputes regarding ESI that counsel for the parties are unable to 

resolve shall be presented to the Court at the initial status conference, Fed. R. Civ. 

P. 16(b) Scheduling Conference, or as soon as possible thereafter. 

(c) The attorneys for each party shall review and understand how their 

respective client’s data is stored and retrieved before the meet and confer 

discussions in order to determine what issues must be addressed during the meet 

and confer discussions. 

(d) If the Court determines that any counsel or party in a case has failed 

to cooperate and participate in good faith in the meet and confer process or is 

impeding the purpose of these Principles, the Court may require additional 

discussions prior to the commencement of discovery, and may impose sanctions, if 

appropriate. 

2.02 E-Discovery Liaison(s) 

In most cases, the meet and confer process will be aided by participation of 

an e-discovery liaison(s) as defined in this Principle. In the event of a dispute 

concerning the preservation or production of ESI, each party shall designate an 

individual(s) to act as e-discovery liaison(s) for purposes of meeting, conferring, 

and attending court hearings on the subject. Regardless of whether the ediscovery liaison(s) is an attorney (in-house or outside counsel), a third party 

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consultant, or an employee of the party, the e-discovery liaison(s) must: 

(a) be prepared to participate in e-discovery dispute resolution; 

(b) be knowledgeable about the party’s e-discovery efforts; 

(c) be, or have reasonable access to those who are, familiar with the 

party’s electronic information storage systems and capabilities in order to explain 

those systems and capabilities and answer relevant questions; and 

(d) be, or have reasonable access to those who are, knowledgeable about 

the technical aspects of e-discovery, including electronic document storage, 

organization, and format issues, and relevant information retrieval technology, 

including search methodology. 

2.03 Preservation Requests and Orders 

(a) Appropriate preservation requests and preservation orders further the 

goals of these Principles. Vague and overly broad preservation requests do not 

further the goals of these Principles and are therefore disfavored. Vague and overly 

broad preservation orders should not be sought or entered. The information sought 

to be preserved through the use of a preservation letter request or order should be 

reasonable in scope and mindful of the factors set forth in Rule 26(b)(2)(C). 

(b) To the extent counsel or a party requests preservation of ESI through 

the use of a preservation letter, such requests should attempt to ensure the 

preservation of relevant and discoverable information and to facilitate cooperation 

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between requesting and receiving counsel and parties by transmitting specific and 

useful information. Examples of such specific and useful information include, but 

are not limited to: 

(1) names of the parties; 

(2) factual background of the potential legal claim(s) and 

identification of potential cause(s) of action; 

(3) names of potential witnesses and other people reasonably 

anticipated to have relevant evidence; 

(4) relevant time period; and 

(5) other information that may assist the responding party in 

assessing what information to preserve. 

(c) If the recipient of a preservation request chooses to respond, that 

response should provide the requesting counsel or party with useful and specific 

information regarding the preservation efforts undertaken by the responding party. 

Examples of such useful and specific information include, but are not limited to, 

information that: 

(1) identifies what information the responding party is willing to 

preserve and the steps being taken in response to the preservation 

letter; 

(2) identifies any disagreement(s) with the request to preserve; and 

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(3) identifies any further preservation issues that were not raised. 

(d) Nothing in these Principles shall be construed as requiring the 

sending of a preservation request or requiring the sending of a response to such a 

request. 

2.04 Scope of Preservation 

(a) Every party to litigation and its counsel are responsible for taking 

reasonable and proportionate steps to preserve relevant and discoverable ESI 

within its possession, custody, or control. Determining which steps are reasonable 

and proportionate in particular litigation is a fact specific inquiry that will vary 

from case to case. The parties and counsel should address preservation issues at 

the outset of a case, and should continue to address them as the case progresses 

and their understanding of the issues and the facts improves. 

(b) Discovery concerning the preservation and collection efforts of 

another party may be appropriate but, if used unadvisedly, can also contribute to 

the unnecessary expense and delay and may inappropriately implicate work 

product and attorney-client privileged matter. Accordingly, prior to initiating such 

discovery a party shall confer with the party from whom the information is sought 

concerning: (i) the specific need for such discovery, including its relevance to 

issues likely to arise in the litigation; and (ii) the suitability of alternative means 

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for obtaining the information. Nothing herein exempts deponents on merits issues 

from answering questions concerning the preservation and collection of their 

documents, ESI, and tangible things. 

(c) The parties and counsel should come to the meet and confer 

conference prepared to discuss the claims and defenses in the case including 

specific issues, time frame, potential damages, and targeted discovery that each 

anticipates requesting. In addition, the parties and counsel should be prepared to 

discuss reasonably foreseeable preservation issues that relate directly to the 

information that the other party is seeking. The parties and counsel need not raise 

every conceivable issue that may arise concerning their preservation efforts; 

however, the identification of any such preservation issues should be specific. 

(d) The following categories of ESI generally are not discoverable in 

most cases, and if any party intends to request the preservation or production of 

these categories, then that intention should be discussed at the meet and confer or 

as soon thereafter as practicable: 

(1) “deleted,” “slack,” “fragmented,” or “unallocated” data on 

hard drives; 

(2) random access memory (RAM) or other ephemeral data; 

(3) on-line access data such as temporary internet files, history, 

cache, cookies, etc; 

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(4) data in metadata fields that are frequently updated 

automatically, such as last-opened dates; 

(5) backup data that is substantially duplicative of data that is 

more accessible elsewhere; and 

(6) other forms of ESI whose preservation requires extraordinary 

affirmative measures that are not utilized in the ordinary course of 

business. 

(e) If there is a dispute concerning the scope of a party’s preservation 

efforts, the parties or their counsel must meet and confer and fully explain their 

reasons for believing that additional efforts are, or are not, reasonable and 

proportionate, pursuant to Rule 26(b)(2)(C). If the parties are unable to resolve a 

preservation issue, then the issue should be raised promptly with the Court. 

(f) Absent an order of the Court upon a showing of good cause or 

stipulation by the parties, a party from whom ESI has been requested shall not be 

required to search for responsive ESI: 

(1) from more than five (5) key custodians; 

(2) that was created more than five (5) years before the filing of the 

lawsuit; 

(3) from sources that are not reasonably accessible without undue 

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burden or cost; or 

(4) for more than 160 hours, exclusive of time spent reviewing the 

ESI determined to be responsive for privilege or work product 

protection, provided that the producing party can demonstrate that the 

search was effectively designed and efficiently conducted. A party 

from whom ESI has been requested must maintain detailed time 

records to demonstrate what was done and the time spent doing it, for 

review by an adversary and the Court, if requested. 

2.05 Identification of Electronically Stored Information 

(a) At the Rule 26(f) conference or as soon thereafter as possible, 

counsel or the parties shall discuss potential methodologies for identifying ESI for 

production. 

(b) Topics for discussion may include, but are not limited to, any plans 

to: 

(1) eliminate duplicative ESI and whether such elimination will 

occur only within each particular custodian’s data set or whether it 

will occur across all custodians; 

(2) filter data based on file type, date ranges, sender, receiver, 

custodian, search terms, or other similar parameters; and 

(3) use keyword searching, mathematical, or thesaurus-based topic 

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or concept clustering, or other advanced culling technologies. 

2.06 Production Format 

(a) At the Rule 26(f) conference, counsel and the parties should make a 

good faith effort to agree on the format(s) for production of ESI (whether native or 

some other reasonably usable form). If counsel or the parties are unable to resolve 

a production format issue, then the issue should be raised promptly with the Court. 

(b) The parties should confer on whether ESI stored in a database or a 

discoverable information, resulting in a report or a reasonably usable and 

exportable electronic file for review by the requesting counsel or party. 

(c) ESI and other tangible or hard copy documents that are not textsearchable need not be made text-searchable. 

(d) Generally, the requesting party is responsible for the incremental cost 

of creating its copy of requested information. Counsel or the parties are 

encouraged to discuss cost sharing for optical character recognition (OCR) or 

other upgrades of paper documents or non-text-searchable electronic images that 

may be contemplated by each party. 

3.01 Judicial Expectations of Counsel 

Because discovery of ESI is being sought more frequently in civil litigation 

and the production and review of ESI can involve greater expense than discovery 

of paper documents, it is in the interest of justice that all judges, counsel, and 

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parties to litigation become familiar with the fundamentals of discovery of ESI. It 

is expected by the judges adopting these Principles that all counsel will have done 

the following in connection with each litigation matter in which they file an 

appearance: 

(1) Familiarize themselves with the electronic discovery 

provisions of Federal Rules of Civil Procedure, including Rules 26, 

33, 34, 37, and 45, as well as any applicable State Rules of Procedure; 

(2) Familiarize themselves with the Advisory Committee Report 

on the 2006 Amendments to the Federal Rules of Civil Procedure, 

available at: 

http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/EDiscover

y_w_Notes.pdf; and 

(3) Familiarize themselves with these Principles. 

3.02 Duty of Continuing Education 

Judges, attorneys, and parties to litigation should continue to educate 

themselves on electronic discovery by consulting applicable case law, pertinent 

statutes, the Federal Rules of Civil Procedure, the Federal Rules of Evidence, The 

Sedona Conference® publications relating to electronic discovery1

, additional 

                                                            

1

 www.thesedonaconference.org/ 

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materials available on web sites of the courts2, and of other organizations3 providing 

education information regarding the discovery of ESI4

. 

3.03 Non-Waiver of Attorney-Client Privilege or Work Product Protection 

As part of their duty to cooperate during discovery, the parties are expected 

to discuss whether the costs and burdens of discovery, especially ESI, may be 

reduced by entering into a non-waiver agreement pursuant to Fed. R. Evid. 502(e). 

The parties also should discuss whether to use computer-assisted search 

methodology to facilitate pre-production review of ESI to identify information that 

is beyond the scope of discovery because it is attorney-client privileged or work 

product-protected. 

3.04 Discovery From Nonparties 

Parties issuing requests for ESI from nonparties should attempt to 

informally meet and confer with the nonparty (or counsel, if represented). During 

this meeting, counsel should discuss the same issues with regard to requests for 

ESI that they would with opposing counsel as set forth above. If an agreement 

cannot be reached with the nonparty, the standards outlined above will apply 

generally to the discovery of ESI sought pursuant to Rule 45. 

 

                                                            

2

 E.g., www.ilnd.uscourts.gov/home/ 

3

 E.g., www.discoverypilot.com, www.fjc.gov (Under Educational Programs and materials) 

4

 E.g., www.du.edu.legalinstitute

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3.05 Additional ESI Specifications 

The parties will submit a Stipulated Discovery Plan relating to ESI review 

and production on a future date. 

Dated: February 5, 2015 s/Robert H. Cleland 

 Hon. Robert H. Cleland 

Approved as to form and content: 

/s David Szostek (with consent) /s Catherine T. Dobrowitsky 

Edward Allen Law, PLLC 

Attorney for Plaintiff/Counter-Defendant 

2010 44th St. S.E. 

Grand Rapids, MI 49508 

(616) 226-8002 

dave@edwardallenlaw.com 

(P78171) 

Rivenoak Law Group, P.C. 

Attorneys for Defendant/Counter-Plaintiff 

101 W. Big Beaver Rd., Ste. 1400 

Troy, MI 48084 

(248) 677-1045 

ecf@rivenoaklaw.com 

(P63245) 

 

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