IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO 

Civil Action No. 1:11-cv-02180-WJM-KMT

OTTER PRODUCTS, LLC, a Colorado Limited 

Liability Company, 

Plaintiff, 

v. 

TREEFROG DEVELOPMENTS INC. d/b/a 

LIFEPROOF, a Delaware Corporation, 

 Defendant. 

ORDER REGARDING ELECTRONIC DISCOVERY 

The Court ORDERS as follows 

1. This Order supplemental all other discovery rules and orders. It streamlines 

Electronically Stored Information (“ESI”) production to promote a “just, speedy, and inexpensive 

determination” of this action, as required by Federal Rule of Civil Procedure 1. 

2. This Order may be modified for good cause. The parties shall jointly submit any 

proposed modifications within 30 days after the Federal Rule of Civil Procedure 16 conference. 

If the parties cannot resolve their disagreements regarding these modifications, the parties shall 

submit their competing proposals and a summary of their dispute. 

3. Costs shall be shifted for disproportionate ESI production requests pursuant to 

Federal Rule of Civil Procedure 26. Likewise, a party’s nonresponsive or dilatory discovery 

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tactics will be cost-shifting considerations. 

4. A party’s meaningful compliance with this Order and efforts to promote efficiency 

and reduce costs will be considered in cost-shifting determinations. 

5. General ESI production requests under Federal Rules of Civil Procedure 34 and 

45 shall not include metadata absent a showing of good cause. However, fields showing the date 

and time that the document was sent and received, as well as the complete distribution list, shall 

generally be included in the production. 

6. General ESI production requests under Federal Rules of Civil Procedure 34 and 

45 shall not include email or other forms of electronic correspondence (collectively “email”). To 

obtain email parties must propound specific email production requests. 

7. Email production requests shall only be propounded for specific issues, rather 

than general discovery of a product or business. 

8. Email production requests shall be phased to occur after the parties have 

exchanged initial disclosures and basic documentation about the patents, the prior art, the 

accused instrumentalities, and the relevant finances. While this provision does not require the 

production of such information, the Court encourages prompt and early production of this 

information to promote efficient and economical streamlining of the case. 

9. Email production requests shall identify the custodian, search terms and time 

frame. The parties shall cooperate to identify the proper custodians, proper search terms and 

proper timeframe. 

10. Each requesting party shall limit its email production requests to a total of five 

custodians per producing part for all such requests. The parties may jointly agree to modify this 

limit without the Court’s leave. The Court shall consider contested requests for up to five 

additional custodians per producing party, upon showing a distinct need based on the size, 

complexity, and issues of this specific case. Should a party serve email production requests for 

additional custodians beyond the limits agreed to by the parties or granted by the Court pursuant 

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this paragraph, the requesting party shall bear all reasonable costs caused by such additional 

discovery. 

11. Each requesting party shall limit its email production requests to a total of five 

search terms per custodian per party. The parties may jointly agree to modify this limit without 

the Court’s leave. The Court shall consider contested requests for up to five additional search 

terms per custodian, upon showing a distinct need based on the size, complexity, and issues of 

this specific case. The search terms shall be narrowly tailored to particular issues. 

Indiscriminate terms, such as the producing company’s name or its product name, are 

inappropriate unless combined with narrowing search criteria that sufficiently reduce the risk of 

overproduction. A conjunctive combination of multiple words or phrases (e.g., “computer” and 

“system”) narrows the search and shall count as a single search term. A disjunctive combination 

of multiple words or phrases (e.g., “computer” or “system”) broadens the search, and thus each 

word or phrase shall count as a separate search term unless they are variants of the same word. 

Use of narrowing search criteria (e.g., “and,” “but not,” “w/x”) is encouraged to limit the 

production and shall be considered when determining whether to shift costs for disproportionate 

discovery. Should a party serve email production requests with search terms beyond the limits 

agreed to by the parties or granted by the Court pursuant to this paragraph, the requesting party 

shall bear all reasonable costs caused by such discovery. 

12. The receiving party shall not use ESI that the producing party asserts is attorneyclient privileged or work product protected to challenge the privilege or protection. 

13. Pursuant to Federal Rule of Evidence 502(d), the inadvertent production of a 

privileged or work product protected ESI is not a waiver in the pending case or in any other 

federal or state proceeding. 

14. The mere production of ESI in a litigation as part of a mass production shall not 

itself constitute a waiver for any purpose. 

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 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 

Dated: December 13, 2011 /s Rachael D. Lamkin 

 Rachael D. Lamkin 

Attorney for Plaintiff Otter Products LLC 

Dated: December 13, 2011 /s Ian R. Walsworth 

 Ian R. Walsworth 

Attorney for Defendant Treefrog 

Developments Inc. d/b/a LifeProof 

 

PURSUANT TO STIPULATION, IT IS SO ORDERED. 

Dated: December 14, 2011 

 

 

 Kathleen M. Tafoya 

United States Magistrate Judge 

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